Petition — Macon Telegraph Publishing Co. v. Elliott

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FFLED

IN THE JAN 23 1984

Supreme Court of the Wnited DER L STEvas.

CLERK

OcTOBER TERM 1983

THE MACON TELEGRAPH PUBLISHING COMPANY

Petitioner,

Betty H. ELLiott

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF GEORGIA

*ARTHUR B. HANSON

ARTHUR D. McKEy

GreGoryY P. SCHERMER

PAMELA J. BROWN

HANSON, O'BRIEN, BIRNEY & BUTLER

888 Seventeenth Street, N.W.

Suite 1000

Washington, D.C. 20006

(202) 298-6161

Ep S. Sext, Ill

SELL & MELTON

1414 Georgia Power Building

P.O. Box 229

Macon, Georgia 31297

(912) 746-8521

Attorneys for Macon Telegraph

Publishing Company

* Counsel of Record

Il.

Ill.

QUESTIONS PRESENTED

WHETHER NEW YORK TIMES V. SULLIVAN PRO-

HIBITS RECOVERY FOR A PUBLICATION WHICH IS

NOT DEFAMATORY.

WHETHER THE DAMAGES AWARDED BY THE

JURY ARE CLEARLY EXCESSIVE AND THEREFORE

UNCONSTITUTIONAL UNDER THE DECISIONS OF

THIS COURT.

WHETHER THE EVIDENCE FAILS TO SUPPORT

WITH CONVINCING CLARITY THE FINDING OF

ACTUAL MALICE NECESSARY TO SUSTAIN THE

AWARD OF PUNITIVE DAMAGES.

. WHETHER THE TRIAL COURT COMMITTED RE-

VERSIBLE ERROR BY IMPROPERLY INSTRUCTING

THE JURY ON WHAT CONSTITUTES ACTUAL MAL-

ICE.

WHETHER THE AWARD OF PUNITIVE DAMAGES

AGAINST A PUBLISHER MUST BE REVERSED

WHERE THERE HAS BEEN NO EVIDENCE THAT

THE PUBLISHER POSSESSED A HIGH DEGREE OF

AWARENESS OF PROBABLE FALSITY OF THE

PUBLICATION.

Pursuant to Supreme Court Rule 21.1() and 28.1 the

following were parties to the proceeding below.

Betty H. Elliot

The Macon Telegraph Publishing Co.

Knight-Ridder Newspapers, Inc., parent

Company of The Macon Telegraph Publishing Co.

I se naaaeheesteidliiieaiaaes

SEALER TER AT

Constitutional and Statutory Provisions Involved............

EAA EA EO

INTRODUCTION: Reasons for Granting the Writ........

II.

Il.

THE FIRST AMENDMENT PROHIBITS RE-

COVERY FOR A STATEMENT WHICH IS

I csr nncedicieenemenmisiconanantbots

THE DAMAGES AWARDED BY THE JURY

ARE CLEARLY EXCESSIVE AND ARE UN-

CONSTITU fMiONAL UNDER THE DECI-

UE BUM GPEC scccscrsesenssccescescncesesveneses

A. The Punitive Damages Award Violates

Petitioner’s . Rights Under the First

(ES EET AI eran ee

B. The Award of Compensatory Damages

Made by the Jury Below is Not Supported

by Competent Evidence and is Excessive...

C. Numerous Federal and State Courts Have

Reduced Excessive Compensatory and

Punitive Damage Awards Not Supported

by the Evidence on First Amendment

REET eS ee

THE EVIDENCE FAILS TO SUPPORT WITH

CONVINCING CLARITY THE FINDING OF

ACTUAL MALICE NECESSARY TO SUS-

TAIN THE AWARD OF PUNITIVE DAM-

ERS A A

THE TRIAL COURT COMMITTED RE-

VERSIBLE ERROR BY IMPROPERLY IN-

STRUCTING THE JURY ON WHAT CON-

STITUTES ACTUAL MALICE.........cccccccccscscoeess

THE AWARD OF PUNITIVE DAMAGES

AGAINST A PUBLISHER MUST BE RE-

VERSED WHERE THERE HAS BEEN NO

EVIDENCE THAT THE PUBLISHER POS-

SESSED A HIGH DEGREE OF AWARENESS

OF PROBABLE FALSITY OF THE PUBLI-

EAT EEE ER aed ae eS

SITET sisttetiinsvionsnnibacsesntinesncctncintecssecoveniasioestiinnesane

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

APPENDIX E:

APPENDIX F:

APPENDIX G.

TABLE OF APPENDICES

Newspaper Article entitled “Juror: Lumpkin

Acted Like Innocent Man” as it appeared in

the Macon Telegraph on November 25, 1980.

OPINION of the Court of Appeals of the

State of Georgia dated February 18, 1983.

ORDER of Court of Appeals of the State of

Georgia affirming the judgment of the State

Court of Bibb County and dated February 8,

1983.

ORDER of Court of Appeals of the State of

Georgia dated March 10, 1983 denying mo-

tion for rehearing and revised OPINION.

ORDER of the Supreme Court of Georgia

vacating Writ of Certiorari dated October 4,

1983.

ORDER of the Supreme Court of Georgia

dated October 25, 1983 denying appellants

motion for rehearing.

ORDER of the Court of Appeals of Georgia

denying Appellants motion to recall the

remittitur and grant a stay dated December

21, 1983.

TABLE OF CITATIONS

CASES:

Afro-American Publishing Co. v. Essex County News-

papers, Inc., 330 N.E. 2d 161 (Mass. 1975)........:....

Ag-Chem Equipment Co. v. Hahn, Inc., 480 F.2d 482

CE: CITED cenncenisinnddikasenistenabintenttecnssingiiestabantinns

Airlie Foundation, Inc. v. Evening Star Newspaper

Cain SOF Fe GEL CRATER, FTE) ccicscnccasntsceenices

Altoona Clay Productions, Inc. v. Dunn & Bradstreet,

Inc., .86 F. Supp. 899 (W.D. Pa. 1968), rev'd on

other grounds sub nom. Grove v. Dunn & Brad-

street, 438 F.2d 433 (3d Cir. 1971), cert. denied,

gy) eR eC En SCOT

Atkinson v. Equitable Life Assurance Society, 519

fe gi ko Le 3 . ) eee

Bazdine v. Sharon-Herald Co., 391 F.2d 703 (3d Cir.

iris haccccaniadibtsdncutnesbeichicahesatihoninaciatanseihapundeincendiininintpeaints

Bates v. Little Rock, 361 U.S. 516 (1960)...............0000

Belo Corp. v. Rayzor, 620 S.W. 2d 756 (Tex. App.

SUTITE U cscisieciiaeniepililiiuanaieabainn eens taiiaiailiiianucadlcianidindeh

Blackburn v. Alabama, 361 U.S. 199 (1960)...............

Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976)............

Burnett v. National Enquirer, No. 2d Civ. 66447, 9

Med. L. Rptr. 1921 (Cal. App. 3d, July 18, 1983),

appeal docketed, No. (U.S. Dec. 30, 1983).........

Burns v. McGraw-Hill Broadcasting Co., 659 P.2d

Bre EA AI IE EDD ccscnsansacenisasesdsneibasessniinansatibadabtinictioni

Butts v. Curtis Publishing Co., 225 F. Supp. 916

(N.D. Ga. 1964), aff'd on other grounds, 351 F.2d

702 ( Sth Cir. 1965), aff'd, 388 U.S. 130 ( 1967)......

Casale v. Dooner Laboratories, Inc., 343 F. Supp. 917

(D. Md. 1972), aff'd in part, rev'd in part on other

grounds, 503 F.2d 303 (4th Cir. 1973)... ceeeeeeee

Coates v. Cincinnati, 402 U.S. 611 (1971) ........cceceeeee

Crowell-Collier Publishing Co. v. Caldwell, 170 F.2d

OE Ce aIERs IED scieencniicsicasiinstncasctiinsbaiiahaiiansininnibapece

Edwards v. South Carolina, 372 U.S. 229 (1963).........

~— Printing Co. v. Roden, 247 F.2d 8 (9th Cir.

DUTT Picea ceseicttinninicesjuitnsitahiialapniiantseihsaattebecitbiamialdidisaibiibdmndials

9,18

Fadell v. Minneapolis Star & Tribune Co., Inc., 425 F.

Supp. 1075 (N.D.Ind. 1976), aff'd, 557 F.2d 107

(7th Cir. 1977), cert. denied, 434 U.S. 966 (1977)..

Farrar v. Tribune Pub. Co., 57 Wash. 549, 358 P.2d

| SRE RE

Fleck Bros. Co. v. Sullivan, 423 F.2d 155 (7th Cir.

a iaheiienepeeannnn

Garrison v. Louisiana, 379 U.S. 64 (1964) ..................

Gertz v. Robert Weich, Inc., 418 U.S. 323 (1974) .......

Greenbelt Cooperative Publishing Ass'n. v. Bresler,

398 U.S. 6 (1970), rev’g 252 A.2d 755 (Md. 1969)

Herbert v. Lando, 441 U.S. 153 (1979) ......cccccccceeeeeeeeee

Hope v. Hearst Consolidated Publications, Inc., 294

F.2d 681 (2d Cir. 1961), cert denied, 368 U.S. 956

ES SE A

Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.

1977) cert. denied sub nom. Hotchner v. Doubleday

ie es 5 eer

Hurley v. Northwest Publications, Inc., 273 F. Supp.

tg Minn. 1967), aff'd, 398 F.2d 346 ( 8th Cir.

Kidder v. Anderson, 345 So.2d 922 (La.App. Ist Cir.

1977), rev'd on other grounds, 3 Med. L. Roptr.

1881 (La. 1978), cert. denied, 439 U.S. 829 (1978)

Kimmerle v. New York Evening Journal, Inc., 262

N.Y. 99, 102, 186 N.E. 217, 218 (1933) .................

Malerba v. Newsday, Inc., 64 A.D.2d 623, 406

McHale v. Lake Charles American Press, 390 So. 2d

556 (La. 1980) cert. denied, 452 U.S. 941 (1981)...

McLaughlin v. Florida, 379 U.S. 184 (1964)...............

Moore v. Greene, 431 F.2d 584 ( 9th Cir. 1970.............

Nader v. de Toledano, 408 A.2d 31 (1979) ..........ccc000+

Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976).

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

Press Enterprise Co. v. Superior Court, ;

(1984) (decided Jan. 18, 1984)...

Rosanova v. Playboy Enterprises, Inc., 411 F. Supp.

Ne Ga. 1976), aff'd, 580 F.2d 859 ( Sth Cir.

19,23,26

Passim

21,27

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).

Samborsky v. Hearst Corp., Civ. No. HM 76-375 (D.

I ides Sesnnanneininsanasesbersancete

Sprouse v. Clay Communications, Inc., 211 S.E.2d

cis ics nnnuliannincceninn

St. Amant v. Thompson, 390 U.S. 727 (1968) .............

Taskett v. King Broadcasting Co., 86 Wash. 2d 439,

I sa cacdehchnkverncchasnennossesnsncsscosenszonse

Time, Inc. v. Pape, 401 U.S. 279 (1971) ......cccccccesesseees

Walker v. Colorado Springs Sun, Inc., 538 P.2d 450

Ail dahasatscsadinchstnaladaeseesiianhestoaiinebisihens

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C.

aici dh enc chadasichsinianauhediinnccsinestion’

Wegner v. Rodeo Cowboys Association, 417 F.2d 881

(10th Cir. 1969), cert. denied, 398 U.S. 903 (1970)

Widener v. Pacific Gas & Electric Co., 75 Cal. App.3d

415, 142 Cal. Rptr. 304 (1977), cert. denied, 436

SE IIE Tico is becaitithdtninchdiniannsnsitiioneiskineneinsboscscstent

Williams v. City of New York, 508 F.2d 356 ( 4th Cir.

I Sidieli h iiesiasscaitecienttNhceanndetaneenabhtncsencsiscancesecese

OTHER AUTHORITIES:

| Hanson, Libel and Related Torts, Sec. 167 (1969)...

R. Sack, Slander Libel and Related Problems, Sec.

RS ee

Punitive Damages in Defamation Litigation; A Clear

and Present Danger to Freedom of Speech, 64 Yale

ict ecctineseeentenideacnaslsncsasanentioces

Prosser, The Law of Torts § 2 (4th ed. 1971) ..............

Restatement (Second ) of Torts § 909 ...........ccccccscceeeees

F. Friendly, Js Our Libel Law a Threat to Free

Speech, Washington Post, Jan. 15, 1984 at D1-2,

liana aieihctipneheathinteiascinienieiieciatrennidcatnanconties

Page

12,13

20,23,24

12,15,17

9,13

10,17

10, 13,26

IN THE

Supreme Court of the Wnited States

OCTOBER TERM 1983

THE MACON TELEGRAPH PUBLISHING COMPANY

Petitioner,

Betty H. ELLIottT

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF GEORGIA

OPINIONS BELOW

The following are reproduced in their entirety in the

appendix:

The Opinion of the Court of Appeals of the State of

Georgia dated February 8, 1983, (app. B) and the amended

Opinion dated March 10, 1983 (app. D).

The Order of the Supreme court of Georgia vacating the

writ of certiorari dated October 4, 1983 (app. E).

The Order of the Supreme Court of Georgia dated October

25, 1983 denying Petitioner’s motion for rehearing (app. F).

JURISDICTIONAL STATEMENT

This libel case was tried in the State Court of Bibb County

Georgia. A jury awarded the Plaintiff $50,000 in compensatory

damages and $150,000 in punitive damages.

Petitioner appealed the judgment to the Court of Appeals

of the State of Georgia. The judgment was affirmed by said

Court by an opinion dated February 8, 1983. The Court

amended its opinion on March 10, 1983.

The Supreme Court of Georgia granted the newspaper’s

Petition for Certiorari on May 26, 1983. The Georgia Supreme

Court vacated the writ of certiorari on December 4, 1983.

Petitioner’s motion for reconsideration was denied on October

25, 1983.

Jurisdiction over this matter is conferred upon this Court

by 28 U.S.C. §1257(3) 1976.

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides in part: :

Congress shall make no law... abridging the free-

dom of speech, or of the press. . .”

The Fourteenth Amendment of the United States Con-

stitution provides, in part:

No State shall make or enforce any laws which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

This is a libel action brought by a private individual

concerning a newspaper article that was published at the

conclusion of a highly-publicized murder trial by Petitioner,

The Macon Telegraph Publishing Company (“the news-

paper”). The article was an account of interviews conducted

with several jurors after the trial. One of the jurors mentioned

in the article, Respondent Mrs. Betty H. Elliott, sued for libel in

the State Court of Bibb County, Georgia, claiming that state-

ments attributed to her in the article were not made by her and

that they were false, malicious, and defamatory. The case was

submitted to a jury which returned a verdict in favor of Mrs.

Elliott for $50,000 in actual damages and $150,000 in punitive

damages. The newspaper unsuccessfully pursued all possible

avenues of review in the state courts of Georgia and now

petitions this Court for a Writ of Certiorari to the Supreme

Court of Georgia. The controversy to be presented to this

Court is whether the actions of the Georgia courts violated the

First Amendment to the United States Constitution as applied

to the States through the Fourteenth Amendment.

While there is a factual dispute with respect to the truth or

falsity of the allegedly libelous material, the facts essential to a

resolution of the questions presented to this Court are not in

dispute. They were the subject of a stipulation between the

parties in the Georgia trial court and they can be briefly

summarized.

Michael Wallace Lumpkin was placed on trial in Novem-

ber of 1980 by the state of Georgia for the murders of Michael

and Becky Lubel. The trial began on Monday, November 10,

1980, and ended on Friday, November 21, 1980. On Novem-

ber 25, 1980, an article entitled “Juror: Lumpkin Acted Like

Innocent Man” appeared in The Macon Telegraph. The article

contained the following account:

Two other members of the jury that acquitted Lump-

kin of murder Friday disclosed in post-trial inter-

views that they had already made up their minds

before the panel met collectively to discuss the case.

Betty Elliott, a bus driver for the Bibb County Board

of Education, and Louie A. Bridges, a Robins Air

Force Base employee, said they decided to vote not

guilty before deliberations began.

Although they couldn’t be specific, it was some time

within a day or two before the case went to the jury

when they formed an opinion.

A day or two before the twelve day trial ended would have

been a time long after the prosecution had rested its case and

prior to completion of defendant’s case.

On December 16, 1980, Mrs. Elliott wrote a letter to The

Macon Telegraph Publishing Company stating that she had not

made the statement that she decided to vote not guilty before

deliberations began in the Lumpkin case and asking for a

printed retraction. On February 4, 1981, Mrs. Elliott wrote a

second letter to The Macon Telegraph Publishing Company.

This letter included the text of Mrs. Elliott’s earlier letter

demanding a retraction.

The newspaper declined Mrs. Elliott’s request for a retrac-

tion but published the text of Mrs. Elliott’s December 16, 1980

letter on the editorial page of the newspaper, and added the

statement of the Editor, “We stand by the story, but we are

happy to publish Ms. Elliott’s side of the matter. —ED.”

On February 17, 1981, The Macon Telegraph Publishing

Company was served with a Complaint alleging that the

portions of the November 25, 1980 article quoted above were

not made by Mrs. Elliott, were false, malicious, and defama-

tory. Mrs. Elliott demanded $50,000 compensatory damages

and $250,000 punitive damages. The jury awarded her $50,000

compensatory damages and $150,000 punitive damages on

March 2, 1982. The trial court entered a judgment on the jury

verdict on March 2, 1982.

In its brief to the Court of Appeals of Georgia, the

newspaper argued that the words in the article do not constitute

newspaper libel as a matter of law; that the newspaper was not

liable for punitive damages because no constitutional malice

had been shown at trial; and that the newspaper was entitled to

a new trial on every ground set out in its amended motion for

new trial.

The Court of Appeals of Georgia rejected the newspaper’s

argument that the words of the article were not defamatory as a

matter of law. In addition, without reference to Gertz v. Welch,

418 U.S. 323 (1974), or to any other decision of this Court, the

court rejected the newspaper’s contention that it is not liable for

punitive damages because actual malice had not been proven.

The court held that the newspaper’s “arguments based on

constitutional law requiring separate evidence of a defendant’s

‘actual malice’ before a defamation can be found applies [sic]

to defamations against public officials and public figures and

are inapposite in this case as there is no evidence that appellee

{Mrs. Elliott] was a public figure or a public official.”

Moreover, the court found that the evidence was sufficient to

authorize the jury to find the existence of a false and malicious

defamation. The court refused to overturn the awards of actual

and punitive damages as excessive.

In response to the February 8, 1983 ruling of the Court of

Appeals, the newspaper filed a Motion for Rehearing. On

March 10, 1983, the Court of Appeals denied the newspaper’s

Motion for Rehearing and issued a partial revision of its

original opinion. Finally recognizing this Court’s decision in

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court of

Appeals held in the revised portion of its opinion that the trial

court did not err in denying the newspaper’s Motion for a

Directed Verdict and Judgment Notwithstanding the Verdict on

the issue of the Newspaper’s liability for punitive damages.

The court held that from its “review of the evidence and the

trial court’s charge on this issue, we find that the jury could

reasonably conclude that the reporter, and thus appellant [the

newspaper], was aware that the statements attributed to ap-

pellee [Mrs. Elliott] were false when they were published and

established actual malice.” The court held further that “the rule

in Georgia in libel is that the malicious conduct of an employee

is imputed to the employer provided it is within the scope of his

authority.” In a section added to its original opinion, the court

held that the trial court had not erred in denying the news-

paper’s Motion for New Trial made on the general grounds that

there was no evidence that it libeled Mrs. Elliott or that Mrs.

Elliott was entitled to punitive damages.

On May 26, 1983, the Supreme Court of Georgia granted

the newspaper’s Writ of Certiorari. Two justices dissented and

one justice was disqualified. The Court notified the newspaper

that it was particularly concerned with the question of whether

the article was defametory as a matter of law.

On August 29, 1983, the Supreme Court of Georgia issued

an order noting that because Justice Hardy Gregory, Jr. was

disqualified to act in the case, it was ordered that the Honorable

Jere F. White, Judge of the Superior Court of the Cherokee

Judicial Circuit, be designated to act in the place of Justice

Gregory in the case.

On October 4, 1983, the Supreme Court of Georgia, by a

vote of 4 to 3, held “[a]fter plenary consideration of this

matter, it is found not to satisfy the criteria for the grant of

certiorari and the writ is therefore vacated.”

On October 12, 1983, the newspaper served its Motion for

Rehearing on Behalf of Applicant for Certiorari and that

motion was received in the Supreme Court of Georgia on

October 17, 1983.

On October 25, 1983, the Supreme Court of Georgia in a 4

to 3 vote denied the newspaper’s Motion for Rehearing.

Superior Court Judge White, taking the place of Justice Greg-

ory who was disqualified, voted with the majority.

On December 21, 1983, petitioner filed with the Court of

Appeals of the State of Georgia a motion to stay the remittitur.

The motion was summarily denied the same day.

On December 23, 1983, the Petitioner filed with this Court

a Motion to stay the Remittitur (Mandate) of the Court below.

Said Motion was denied by Mr. Justice Powell on December 27,

1983.

INTRODUCTION:

Reasons For Granting The Writ

This case resulted in a judgment in the amount of $200,000

on the basis of a newspaper article that was not defamatory,

caused virtually no damage to the Respondent’s reputation, and

which was published with an absolute good faith belief in its

accuracy.

1. The Article is not defamatory as a matter of law. It

merely states that during the course of a criminal trial, a juror

formed the opinion that the defendant was innocent. This

occurred after the prosecution had rested, but before the

defense had completed its case. It is perfectly appropriate for a

juror to conclude that the state has failed to prove guilt beyond

a reasonable doubt at the close of the prosecution’s case. There

is no possible interpretation of the article which could cause the

Respondent to be held up to hatred, ridicule, or contempt, or

cause her to be shunned. The statement is not defamatory and

caused no damage to reputation. To allow the Respondent to

recover $200,000 for a totally innocent statement does violence

to Petitioner’s First Amendment rights and is contrary to

this Court’s pronouncements in New York Times v. Sullivan

376 U.S. 254, (1964) and Gertz v. Robert Welch, Inc. 418 U.S.

323 (1974). The First Amendment prohibits liability without

fault and requires proof of actual damages. In addition, the

First Amendment prohibits recovery for innocent, non-

defamatory statements.

2. The article caused no damage to Respondent’s reputa-

tion. The judgment below is a classic example of a jury

awarding a grossly excessive verdict in the absence of proof of

actual damage. The only evidence of actual damage is the

temporary loss of a baby sitting job. Yet the jury awarded

$50,000 in compensatory damages. This case presents precisely

the type of abuse which this Court sought to prevent in Gertz.

3. The punitive award of $150,000 is similarly uncon-

scionable and constitutionally infirm. When jurors, who are

generally unskilled in punishment and susceptible to emotional

responses, impose disproportionate awards of punitive dam-

ages, the system becomes a mockery and the First Amendment

is imperiled. Huge jury awards of punitive damages have

become a problem having national impact.' A reversal of the

punitive award in this case would do much to diminish the

climate of self-censorship which is the inevitable result of

massive awards of punitive damages.

4. The article was published with an aboslute good faith

belief in its truth and accuracy. The author of the article took

contemporaneous notes of his interview with the Respondent

which verify the accuracy of the statement. Moreover, there is

no competent evidence that the publisher entertained any

doubts as to the truth of the publication.

The article in question is a report of a criminal proceeding

based on consentual interviews with discharged jurors. Public

discussion of the jury process, like open voir dire proceedings

“enhances both the basic fairness of the criminal trial and the

appearance of fairness so essential to public confidence in the

system.” Press Enterprise Co. v. Superior Court. ~~ US.

—___., (decided Jan. 18, 1984) slip opinion at 6. The article

constitutes a sensitive discussion of the thoughts and emotions

experienced by the jurors during the course of a murder trial.

To suggest that it is an attack upon Ms. Elliot’s character or

reputation is absurd. The article is emphatically nor the type of

“ ‘calculated falsehood’ or ‘reckless attack’ upon the character

'F. Friendly, /s Our Libel Law a Threat to Free Speech, Washington Post,

Jan. 15, 1984 at D1-2, Col. 1.

of another which is ‘at odds with the premises of democratic

government and with the orderly manner in which economic,

social, or political change is to be effected.’ Curtis Publishing

Company v. Butts, 388 U.S. 130 (1967).

I. THE FIRST AMENDMENT PROHIBITS RECOVERY

FOR A STATEMENT WHICH IS NOT DEFAMA-

TORY

In New York Times v. Sullivan, this court established that

the constitution requires a libel plaintiff to prove all common

law elements of a cause of action for libel in addition to

establishing actual malice. This court explicitly held that the

First Amendment was violated because the article was not “of

and concerning” the respondent.

We also think the evidence was constitutionally

defective in another respect: it was incapable of

supporting the jury’s finding that the allegedly libel-

ous statements were made “of and concerning” re-

spondent. Respondent relies on the words of the

advertisement and the testimony of six witnesses to

establish a connection between it and himself.

Id., at 289.

The most fundamental common law element of a cause of

action for libel requires that the statement must be defamatory.

The article in this case did not defame the Respondent. It

simply stated that she had formed an opinion as to the

innocence of the defendant “a day or two” before the con-

clusion of a twelve day trial.

Defamation is defined as “the uncontested and unprivi-

leged communication to a third party of a false idea which

tends to injure plaintiff's reputation by lowering the commu-

nity’s estimation of him, or by causing him to be shunned or

avoided, or by exposing him to hatred, contempt or ridicule.” |

Hanson, Libel and Related Torts, §167 (1969). It is undisputed

that a com‘nunication that is merely unflattering, annoying,

irking, or embarassing, or that simply hurts the plaintiff's

feelings is not actionable. R. Sack, Libel, Slander and Related

Problems § 11.4.1. (1980). One court has described the source

of reputational injury as nothing less than “words which tend to

expose one to public hatred, shame, obloquy, contumely,

odium, contempt, ridicule, aversion, ostracism, degradation, or

disgrace, or to induce an evil opinion of one in the minds of

right-thinking persons and to deprive one of their confidence

and friendly intercourse in society.” Kimmerle v New York

Evening Journal, Inc., 262 N. Y. 99, 102, 186 N.E. 217, 218

(1933).2

The article at issue in the present case contained absolutely

no references which even remotely approached the level of an

actionable defamation under these traditional and universally

accepted definitions.

The prosecution bears the burden of proof that a criminal

defendant is guilty beyond a reasonable doubt. To state that a

juror formed an opinion as to the innocence of the accused at a

time during a criminal trial when the prosecution had con-

cluded its case against the accused does not charge the juror

with any improper, illegal, dishonest or immoral conduct. A

juror has the right to have an opinion at that point in the case as

to the innocence of the accused if the prosecution has not

carried its burden of proof. These words do not charge that the

juror has prejudged the case before she was sworn as a juror in

the case, that she violated her oath, that she wantonly and

willfully made a verdict unsupported by either the evidence or

the law, or that she gave false answers on the voir dire question.

It is legal and proper for a juror in a criminal case to form

an opinion that there has not been sufficient evidence to prove

the defendant guilty beyond a reasonable doubt after the

prosecution has rested. This is all that was said about the

2 RESTATEMENT (SECOND) oF Torts 4559 (1977) (“A communication is

defamatory if it tends so to harm the reputation of another as to lower him in

the estimation of the community or to deter third persors from associating or

dealing with him.”).

Respondent. Jurors have the right to form and change opinions

from time to time during a trial. The Petitoner has said nothing

about the Respondent in this case which imputes crime, fraud,

or other reprehensible conduct and the statements do not

exclude the possiblity that the Respondent acted in good faith.

A juror acting in good faith could form an opinion a day or two

before the case went to the jury, continue to listen to the

remainder of the case including the charge of the court, and

then, under the foregoing authority, decide to vote not guilty

before the jury meets to deliberate. The article in question,

therefore, caused no injury whatsoever to the Respondent’s

reputation. She was not defamed in any manner.

As stated by this Court: “[t]he legitimate state interest

underlying the law of libel is the compensation of individuals

for the harm inflicted on them by defamatory falsehood.” Gertz

v. Robert Welch, Inc., 418 U.S. 323, 341. Where, as in the

instant case, there has been no injury to reputation and thus no

defamation, there should likewise be no recovery. Since no

State interest is being served, it would violate First Amendment

freedoms to allow the judgment in this case to stand.

Il. THE DAMAGES AWARDED BY THE JURY ARE

CLEARLY EXCESSIVE AND ARE UNCON.

STITUTIONAL UNDER THE FIRST AMENDMENT

AND THE DECISIONS OF THIS COURT.

The jury in this defamation action returned a verdict in

favor of the Respondent in the amount of $50,000 actual

damages and $150,000 punitive damages. A review of the

meager evidentiary record on which the damages are based

reveals the excessiveness of the award. The record shows that

Respondent suffered virtually no actual or special damages as a

result of the alleged libel; she suffered at most a nominal

monetary loss and she incurred no medical or other expenses.

Nevertheless, the jury returned an award which included actual

damages for the total amount prayed for in the complaint and

grossly excessive punitive damages. This utterly unsupported

verdict can only be the product of passion, prejudice or

sympathy, Moore v. Greene, 431 F.2d 584 (9th Cir. 1970);

Widener v. Pacific Gas & Electric Co., 75 Cal. App. 3d 415, 142

Cal. Rptr. 304 (1977), cert. denied, 436 U.S. 918 (1978), and is

of a magnitude which is shocking to the conscience of the court.

Casale v. Dooner Laboratories, Inc., 343 F. Supp. 917 (D.Md.

1972), aff'd in part, rev'd in part on other grounds, 503 F.2d 303

(4th Cir. 1973); Fleck Bros. Co. v. Sullivan, 423 F.2d 155 (7th

Cir. 1970).

A. The Punitive Damages Award Violates Petitioner’s

Rights Under the First Amendment.

The rule endorsed by at least five members of the Court in

Rosenbloom vy. Metromedia, 403 U.S. 29 (1971), is that

*.. [i]n all actions for libel or slander... awards of punitive

damages will be strictly limited.” Jd. at 58-59 (White, J.,

concurring). Three years later, in Gertz v Robert Welch, Inc.,

418 U.S. 323 (1974), Justice Powell’s opinion for the majority

expressed concern over the unbridled discretion of juries to

award punitive damages. Justice Powell observed that:

In most jurisdictions jury discretion over the amounts

awarded is limited only by the gentle rule that they

not be excessive. Consequently, juries assess punitive

damages in wholly unpredictable amounts bearing

no necessary relation to the actual harm caused. And

they remain free to use their discretion selectively to

punish expressions of unpopular views.

The Court concluded that punitive damages cannot be awarded

to a private plaintiff unless he meets the “demanding showing”

required by New York Times because “[l]ike the doctrine of

presumed damages, jury discretion to award punitive damages

unnecessarily exacerbates the danger of media self censor-

ship....” Id. at 350.

It has been emphasized by federal courts, state courts and

scholarly commentators that a jury’s discretion to award puni-

tive damages in libel actions can be a very direct and substan-

tial deterrent upon the exercise of First Amendment press

freedoms.?

In this regard, it is well-established that since the free

exercise of First Amendment freedoms are at stake, any

punitive award may be upheld only if it effectuates a

“subordinating [state] interest which is compelling.” Bates v.

Little Rock, 361 U.S. 516, 524 (1960). The award of punitive

damages must be shown to be “necessary, and not merely

rationally related, to the accomplishment of a permissible state

policy.” McLaughlin v. Florida, 379 U.S. 184, 196 (1964).

Furthermore, the award of punitive damages must effectuate

the compelling state interest by the least restrictive means

available. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539,

562-65 (1976); Coates v. Cincinnati, 402 U.S. 611 (1971).

Courts in many jurisdictions therefore have held that an

award of punitive damages must bear a “reasonable relation-

ship” to the actual damages assessed. The authorities recognize

no fixed ratio by which to determine the proper proportion

between actual and punitive damages. See Annot., 35 A.L.R.

2d 218, 255 (1954); | Hanson, Libel and Related Torts, § 167

(1969). One court overturned a punitive damages award solely

on the ground that there was a substantial award for com-

pensatory damages. In McHale v. Lake Charles American

Press, 390 So.2d 556 (La. 1980), cert. denied, 452 U.S. 941

(1981), the court expressed its concern for the effect of punitive

damages awards on First Amendment rights and held that such

an award in addition to compensatory damages was in-

3See Gertz v. Robert Weich, Inc., 418 U.S. at 346, 349-350; Rosenbloom v.

Metromedia, Inc., 403 U.S. at 58-65 ( White, J., concurring), 74-75 ( Harlan,

J., dissenting ), 78-87 ( Marshall and Stewart, JJ., dissenting) (1971); Buckley

v. Littell, $39 F.2d 882, 897 (2nd Cir. 1976) cert. denied. 429 U.S. 1062; Afro-

American Publishing Co. v. Essex County Newspapers, Inc., 330 N.E. 2d 161

(Mass. 1975): Taskett v. King Broadcasting Co., 86 Wash. 2d 439, 545 P.2d

81 (1975); Farrar v. Tribune Pub. Co, 57 Wash. 549, 358 P.2d 792 (1961);

Restatement (Second ) of Torts, Explanatory Notes § 621, Comments b and f,

at 286, 288 (Tentative Draft, Nov. 20, 1974); and Punitive Damages in

Defamation Litigation: A Clear and Present Danger to Freedom of Speech, 64

Yale LJ. 610, 613 (1955).

appropriate in libel cases. The court supported its holding in

McHale with the following language from Sprous v. Clay

Communications, Inc., 211 S.E.2d 674 (W.Va. 1975):

It would appear that the penumbra of protection of

the First Amendment is such that punitive damages

may only be recovered in cases where the award of

actual damages is insufficient to cissuade others in

like circumstances from committing similar acts in the

future. The policy embodied in the First Amendment

of encouraging broad dissemination of public infor-

mation forecloses an award of punitive damages

which jeopardizes the existence of a newspaper when

such damages are unnecessary to protect the public

from similar conduct in the future or to make possible

the vindication of plaintiff's rights in the absence of

demonstrable actual damages. An award of

$750,000 would have a chilling effect upon the

legitimate exercise of First Amendment rights and

would lead to the type of self-censorship which has

been the object and purpose of the United States

Supreme Court to prevent since New York Times v.

Sullivan.

Id. at 584.

When considered in light of the foregoing standards of

review, the award to Respondents of $150,000 in punitive

damages clearly constitutes an unwarranted impairment of

press freedom. The state interest in redressing reputational

injury simply does not warrant a punitive damages award of

this magnitude which will certainly result in self-censorship.

B. The Award of Compensatory Damages Made by the Jury

Below Is Not Supported by Competent Evidence and is

Excessive.

Inasmuch as the award of compensatory as well as punitive

damages in libel actions may work a restraint upon the exercise

of First Amendment freedoms, Petitioner urges this Court to

make an independent examination of the record as a whole to

insure that no First Amendment freedoms have been infringed

by the judgment. New York Times v. Sullivan, 376 U.S. 254,

285 (1964). See also Edwards v. South Carolina, 372 U.S. 229,

235 (1963); Blackburn v. Alabama, 361 U.S. 199, 205, n.5

(1960). It is clear that the paucity of evidence adduced at trial

on Respondent’s damages cannot support an award of $50,000

in actual damages. The court below, therefore, erred in failing

to vacate the verdict and order a new trial. See Burns v.

McGraw-Hill Broadcasting Co., 659 P.2d 1351 (1983); Widener

v. Pacific Gas & Electric Co., 75 Cal. App. 3d 415, 142 Cal.

Rptr. 304 (1977), cert. denied, 436 U.S. 918 (1978).

The only testimony regarding the effect on the Respondent

from the publication came from the testimony of three wit-

nesses, Mary Ann Goss, Tommy Burkhalter and Mary Rose

Bush. Mrs. Goss testified as follows:

All right. Having known Mrs. Elliott and known her

as I did, well, it completely changed my mind about

her, and I said this is—this is really stupid, that I

don’t believe I’d want her on my jury if she made up

her mind before a case was over, before everything

was heard . .. she wouldn’t be what I would select.

Tommy Burkhalter testified as follows:

Well, I didn’t believe Mrs. Elliott could do such a

thing and I didn’t feel—I didn’t think Mrs. Elliott

was such a person that I thought she was before I

read the article .. . I just didn’t think Mrs. Elliott,

would, you know, could do such a thing, and I

just—let me think how to put it—I just didn’t think as

highly of Mrs. Elliott after I read the article.

Mary Rose Bush testified as to her feelings following the

article as follows:

I don’t know how to describe it. Well, we had been

letting her keep our little baby so we—I guess were

wondering you know, about him, you know, too, and

I guess what kind of person she was, you know, with

her keeping the baby and all, you know. If—like it

said in one article, you know, like she had forgotten,

you know, I guess which car she went in or whatever

when she went shopping, you know, that she might

forget, you know, when, you know, giving medicine,

if she had already had it, or something. .. . Well, we,

you know, sort of thought, you know,—you know,

sort of figured, you know, she was a responsible, you

know, type person, you know.... We had, you

know,—didn’t go over there for I imagine six to

seven weeks, you know, after that.... we just—after

reading the article and all we didn’t, you know, leave

the baby with her and we got another lady to keep

him when we, you know, go out that lives, you know,

out near us, you know . . . through that time we had

gotten, you know, the other lady, you know, to—the

other lady to keep him. [Did you have an occasion

to go to see Mrs. Eliott before say, January?] It was

sometime in January, I guess, before we—before I

saw her, you know, I saw her at the Piggly- Wiggly,

and we had talked and she had, you know, explained

to me about the article and so—[ Well, why didn’t

you go (to see Mrs. Elliott)?] I guess it was because

we wasn’t clear, you know, too about, you know, the

article, you know—you know, about her. It was

about, you know, a person shouldn’t make up their

mind and I don’t know exactly what—I know that

we—lI guess it was mostly—it was due to the article

because we didn’t, you know, go, you know, over

there.

The foregoing testimony was the only evidence presented to the

jury which could have constituted a basis for the award of

$50,000 in actual damages to the Respondent—the total

amount prayed for in the complaint. The only actual pecuniary

loss was the temporary loss of a babysitting job. Respondents

employment as a bus driver was unaffected.

There is no question that substantial latitude is given to a

jury in awarding damages. The array of factors which may be

considered includes anything from the seriousness of the al-

leged defamation or the plaintiff's prominence and professional

reputation, to the extent of the distribution of the statement or

the extent to which it was actually believed. Damages may be

awarded to compensate for loss of reputation, shame, mortifica-

tion, humiliation, loss of standing in the community, mental

anguish and suffering. R. Sack, Libel, Slander, and Related

Problems § III.4.1 (1980). This broad discretionary power of

the jury notwithstanding, there is a complete lack of evidence in

the record of damages in the present case to support or justify

the amount of the judgment rendered by the jury. At most

nominal damages were appropriate. The award of $50,000

compensatory damages for nothing more than the loss of one

part-time babysitting job is disproportionate 5 and clearly ex-

cessive.® It must be concluded that the jury award was not

based upon sober judgment but rather upon passion, prejudice

or sympathy not related to the law or facts of the case. Moore,

431 F.2d at 584; Widener, 142 Cal. Rptr. at 304.

C. Numerous Federal and State Courts Have Reduced

Excessive Compensatory and Punitive Damage Awards

Not Supported by the Evidence on First Amendment

Grounds.

Numerous courts in this country have held the First

Amendment to require that both compensatory and punitive

damages must be supported by competent evidence in libel

cases. As shown above, the record in this case clearly reveals an

utter lack of any such evidence. The overwhelming weight of

authority therefore mandates that the unprecedented awards of

4 Ag-Chem Equipment Co., Inc. v. Hahn, Inc., 480 F.2d 482 (8th Cir. 1973);

Wegner v. Rodeo Cowboys Association, 417 F.2d 881 (10th Cir. 1969), cert.

denied, 398 U.S. 903 (1970); Empire Printing Co. v. Roden, 247 F.2d 8 (9th

Cir. 1957); Belo Corp. v. Rayzor, 620 S.W. 2d 756 (Tex App. 1981).

5 Atkinson v. Equitable Life Assurance Society, 519 F.2d 1112 (Sth Cir.

1975).

8 Hope v. Hearst Consolidated Publications, Inc., 294 F.2d 681 (2d Cir. 1961),

cert. denied, 368 U.S. 456 (1962), 95 A.L.R 2d 213; Altoona Clay Products,

Inc. v. Dun & Bradstreet, Inc., 286 F.Supp 899 (W.D.Pa. 1968), rev'd on

other grounds, 438 F.2d 433 (3d Cir. 1971), cert. denied, 404 U.S. 898

(1971).

compensatory and punitive damages in this case should not be

permitted to stand.

A number of federal and state courts have either reduced

compensatory and punitive damage awards on appeal or have

reversed the decision itself because the awards were excessive.

E.g., Crowell-Collier Publishing Co. v. Caldwell, 170 F.2d 941

(Sth Cir. 1948) (compensatory and punitive damage awards

totalling $237,500 “excessive” ); Airlie Foundation, Inc. v. Eve-

ning Star Newspaper Co., 337 F. Supp. 421 (D.D.C. 1972)

(compensatory damages awarded to foundation of $419,800

and to its founder of $100,000 reduced to $50,000 and $10,000,

respectively, by remittitur). See also, Butts v. Curtis Publishing

Co., 225 F. Supp. 916 (N.D.Ga. 1964) (punitive damages of

$3 million reduced to $400,000 by remittitur), aff'd on other

grounds, 351 F.2d 702 (Sth Cir. 1965), aff'd, 338 U.S. 130

(1967); Burnett v. National Enquirer, 9 Med. L. Rptr 1921

(Cal. Ct. App.2d 1983) (‘“‘excessive” punitive damage award of

$750,000 reduced to $150,000 on remittitur) appeal docketed,

No. __. (U.S. Dec. 30, 1983); Kidder v. Anderson, 345 So. 2d

922 (La. App. Ist Cir. 1977) (“excessive” compensatory

damage award of $500,000 reduced to $100,000 on remittitur),

rev'd on other grounds, 3 Med. L. Rptr 1881 (La. 1978), cert.

denied, 439 U.S. 829 (1978); Widener v. Pacific Gas & Electric

Co., 75 Cal. App. 3d 415, 142 Cal. Rptr. 415 (1977) (affirming

order of new trial where jury award of $750,000 in com-

pensatory and $7 million in punitive damages “excessive”’),

cert. denied, 436 U.S. 918 (1978).

Ill. THE EVIDENCE FAILS TO SUPPORT WITH CON-

VINCING CLARITY THE FINDINGS OF ACTUAL

MALICE NECESSARY TO SUSTAIN THE AWARD

OF PUNITIVE DAMAGES

It is a fundamental principle of libel that state courts are

preciuded from submitting to juries the issue of punitive

damages unless there has been clear and convincing trial proof

in support of the existence of constitutional actual malice, that

is, publication with knowledge of falsity or reckless disregard

for the truth. This well-established principle was first artic-

ulated by this Court in 1974 in Gertz v. Robert Welch, Inc. 418

U.S. 323 (1974). In Gertz this Court held:

We also find no justification for allowing awards of

punitive damages against publishers and broad-

casters held liable under state-defined standards of

liability for defamation. .. Like the doctrine of pre-

sumed damages, jury discretion to award punitive

damages unnecessarily exacerbates the danger of

media self-censorship, but, unlike the former rule,

punitive damages are wholly irrelevant to the state

interest that justifies a negligence standard for private

defamation actions. ..In short, the private defama-

tion plaintiff who establishes liability under a less

demanding standard than that stated by New York

Times may recover only such damages as are

sufficient to compensate him for actual injury.

Id. at 350.

It is well established that in libel cases an appellate

tribunal has a duty to “make an independent examination of

the whole record” in order to assure “that the judgment does

not constitute a forbidden intrusion on the field of free ex-

pression.” Greenbelt Cooperative Publishing Ass’n. v. Bresler,

398 U.S. 6, 11 (1970); New York Times v. Sullivan, 376 U.S.

254, 285 (1964). A review of the record as a whole clearly

demonstrates that the subject article was published without

actual malice and the award of punitive damages is con-

stitutionally prohibited.

New York Times v. Sullivan first defined the constitutional

protections to be afforded a publisher through the application

of the term “actual malice”. This Court has sought to add

substance to the definition of actual malice in subsequent cases.

In Garrison v. Louisiana, 376 U.S. 64 (1964), this Court held

that actual malice in the form of reckless disregard for the truth

requires a “high degree of awareness ... of probable falsity.”

Id. at 74. This Court has made it absolutely clear that a finding

of actual malice must be supported by evidence which focuses

on the defendant’s subjective state of mind at the time of

publication. Herbert v. Lando, 441 U.S. 153, 160 (1979).

Perhaps the strongest and most articulate judicial statement on

actual malice as it relates to the defendant’s state of mind was

set forth by this Court in St. Amant v. Thompson, 390 U.S. 727

(1968):

“Reckless disregard,” it is true, cannot be fully

encompassed in one infallible definition. Inevitably

its outer limits will be marked out through case-by

case adjudication, as is true with so many legal

standards for judging concrete cases, whether the

standard is provided by the constitution, statutes, or

case law. Our cases, however, have furnished mean-

ingful guidance for the further definition of a reckless

publication. In New York Times, supra, the plaintiff

did not satisfy his burden because the record failed to

show that the publisher was aware of the likelihood

that he was circulating false information. In Garrison

v. Louisiana, 379 U.S. 64 (1964), also decided

before the decision of the Louisiana Supreme Court

in this case, the opinion emphasized the necessity for

a showing that a false publication was made with a

“high degree of awareness of... probable falsity.”

379 U.S. at 74. Mr. Justice Harlan’s opinion in Curtis

Publishing Co. v. Butts, 388 U.S. 130, 153, (1967),

stated that evidence of either deliberate falsification

or reckless publication “despite the publisher’s

awareness of probable falsity” was essential to recov-

ery by public officials in defamation actions. These

cases are clear that reckless conduct is not measured

by whether a reasonably prudent man would have

published, or would have investigated before

publishing. There must be sufficient evidence to

permit the conclusion that the defendant in fact

entertained serious doubts as to the truth of his

publication. Publishing with such doubts shows

reckless disregard for truth or falsity and demonstra-

tes actual malice. ;

Id. at 731.

It is undisputed that a mistake in interpreting events or

documents does not evidence the necessary state of mind.

Time, Inc. v. Pape, 401 U.S. 279 (1971). Such evidence does

not indicate a publisher’s lack of belief in the truth of his

statements. Defendants have been held to be free of actual

malice despite a general failure to investigate. Jd. at 291-92.

Failure to talk to the plaintiff before publication,’ failure to

verify information,® and publication of material incapable of

verification? have been judicially determined not to constitute

actual malice.

It is readily apparent from the stipulated facts and the

undisputed record below that the Petitioner’s conduct does not

rise to the level of blatantly reckless or knowingly false

publication required under the decisions of this Court. In the

decision below, the Court of Appeals held that the actual malice

requisite for a finding of punitive damages was present by

virtue of Respondent’s testimony that the article was false.

App. at 5d. The evidence at trial was uncontradicted that

Petitioner’s reporter, Alan Sverdlik, extensively interviewed the

Respondent, that he contemporaneously made notes of the

interview, and that he based the article upon these notes.

Not only did the reporter’s notes which were admitted into

evidence establish that, subjectively, he understood the re-

spondent to make the statements upon which he based his

article, but his uncontradicted testimony evidenced a continuing

commitment to the belief that the article was accurate:

I asked her when she filed into the jury room had she

pretty much known her opinion on the guilt or

innocence of the defendant, and she said she had,

and that she considered him not guilty. So I said,

? Hurley v. Northwest Publications, Inc., 273 F. Supp. 967 (D. Minn. 1967),

aff'd, 398 F.2d 346 ( 8th Cir. 1968); Malerba v. Newsday, Inc., 64 A.D.2d 623,

406 N.Y.S.2d 552 (N.Y. App. Div. 1978).

® Samborsky v. Hearsi Corp., Civ. No. HM 76-375 (D. Md. Feb. |, 1977);

Fadeil v. Minneapolis Star & Tribune Co., Inc., 425 F. Supp. 1075 (N. D. Ind.

1976) aff'd 557 F.2d 107( 7th Cir. 1977), cert. denied 434 U.S. 966 (1977).

® Hotchner v. Castillo-Puche, $51 F.2d 910 (2d Cir. 1977) cert. denied sub.

nom., Hotchner v. Doubleday & Co., 434 U.S. 834 (1977).

“You knew how you would vote pretty much when

you went into the jury room?” And she said, “Yes.” I

asked her if she could pinpoint a time in this very

complicated long two week tral in which that opin-

ion was formed. She said she couldn’t really say

specifically. I asked her, “Would it be fair and

correct to say that you came to this conclusion within

a day or two of the deliberations?” And she said,

“Yes.”

Moreover, Sverdlik also testified that he spoke with Respondent

over the phone on a Monday evening between 6 and 7 p.m.,

and that he composed Respondent’s comments which he had

written into the article at around 8:15 p.m. that same evening.

The evidence established that Sverdlik wrote his article

based upon a good faith belief that it was a true and accurate

product of a thorough and detailed interview with the Re-

spondent. The article complained of by Respondent was not an

exposé of juror wrongdoing nor was it dramatic in its presenta-

tion of the events which transpired during the process of juror

decisionmaking. Instead it was a measured report of jurors’

impressions based upon extensive interviews. It is inconceiv-

able under these circumstances that Sverdlik would have the

motivation to publish a knowingly false statement; particularly

since he already possessed similar statements from other jurors.

It is respectfully submitted that the evidence was in-

sufficient to clearly and convincingly establish the subjective

actual malice, in the mind of either reporter Sverdlik or in his

corporate publisher, which is required to sustain a verdict for

punitive damages.

IV. THE TRIAL COURT COMMITTED REVERSIBLE ER-

ROR BY IMPROPERLY INSTRUCTING THE JURY

ON WHAT CONSTITUTES ACTUAL MALICE

As noted above, it is axiomatic that in a libel suit there

must first be a finding that the publication was made with

actual malice prior to a finding by a libel jury that punitive

damages are warranted. Gertz v. Robert Welch, Inc., 418 US.

323 (1974). Additionally, the jury :nust find by clear and

convincing evidence that the publisher possessed a “high

degree of awareness of... probable falsity” of the article when

the publication occurred. Garrison v. Louisiana, 379 U.S. 64,

74 (1964). The cases by this Court and many federal and state

courts make it “clear that reckless conduct is not measured by

whether a reasonably prudent man would have published or

would have investigated before publishing.” St. Amant v.

Thompson, 390 U.S. 727, 731 (1968). Thus the inquiry for the

jury is whether the publisher, its agents and employees subjec-

tively “entertained serious doubts as to the truth of his publica-

tion.” Jd. at 731. It is then encumbent on the tral court to

insure through proper jury instructions that the jury will focus

on the state of mind of a defendant, its agents and employees at

the time of publication. In this case the trial court erred in

refusing to give two of defendant’s jury instructions on actual

malice. As a result, Respondent sought and received punitive

damages in the amount of $150,000. The sole instruction

proferred by the court below on actual malice was the follow-

ing:

And if you determine that she is entitled to recover

punitive damages, then I charge you that you must

find first that there was actual malice on the part of

this defendant, and that is that the defendant had

published the article with knowledge of the falsity of

the statements or a reckless disregard of whether they

were false or true.

This bare bones instruction on actual malice in light of

subsequent developments of that notion by this Court was

totally inadequate and misleading in at least one major respect.

This instruction clearly constitutes reversible error in that the

defendant was not granted the full measure of constitutional

protection established by this Court in Gertz v. Robert Welch,

Inc. and other cases subsequent to New York Times v. Sullivan.

Given the apparent limitations of the trial court’s actual malice

charge, the likelihood of confusion or error on the part of the

jury is extreme. No explanation of the phrase “knowledge of

falsity of statements or a reckless disregard of whether they

were false or true” appears anywhere in the charges to the jury.

As a result the jury and ultimately the Petitioner were denied

the benefits of this Court’s meticulous development of the term

“actual malice” since it was adopted by this Court in New York

Times v. Sullivan.

Moreover, the structure of the instruction itself is an

invitation to the jury to award punitive damages without a

requisite finding of actual malice. The instruction begins with

the phrase “if you determine that she is entitled to recover

punitive damages then I charge that you must first find that there

was actual malice. ..”’ The Court in its erroneous statement of

the rule has put the cart before the horse. A jury may not

award punitive damages uni/ess there has been a prior showing

of actual malice. Logic requires that the rule be stated: “If you

determine that there was actual malice... then she is entitled

to recover punitive damages.” The instruction is erroneous,

confusing and contributed to the jury awarding punitive dam-

ages in the absence of actual malice.

It is noteworthy that Petitioner offered two jury charges to

the trial court which virtually were verbatim excerpts from this

Court’s leading cases on the definition of actual malice. Peti-

tioner’s Charge No. 13 was a correct statement of the law as

contained in this Court’s holding in Garrison v. Louisiana, 379

U.S. 64, 74-75 (1964):

Members of the jury, actual malice has been further

defined as the use of a calculated falsehood which

has been knowingly and deliberately published with

a high degree of awareness of its probable falseness.

The Plaintiff must produce sufficient evidence to

permit you to come to the conclusion that the De-

fendant in fact entertained serious doubts as to the

truth of the publication.

Petitioner’s Charge No. 18 was a correct statement of the law as

contained in St. Amant v. Thompson, 390 U.S. 727, 731 (1968):

Members of the jury, in deciding if the Defendant

newspaper is guilty of actual malice, Defendant’s

conduct is not measured by whether a reasonably

prudent man would have published, or would have

investigated before publishing, but there must be

sufficient evidence to permit the conclusion that the

Defendant newspaper entertained serious doubts as

to the truth of its publication.

The refusal of the trial court to instruct the jury with the very

cases which give meaning to the term “actual malice” is clearly

erroneous. The explanation by Justice White in St. Amant vy.

Thompson of the term “actual malice” has become the standard

for jury instructions. It focuses the jury’s inquiry on the

subjective state of mind of the publisher and assures against a

jury mistakenly measuring the publisher’s conduct against an

objective prudent publisher’s standard. Without there being a

requirement in Georgia that a trial court fully instruct a jury on

the issue of actual malice there is reinstituted the “significant

and powerful motives for self-censorship” formerly present in

the common law libel action. The “sufficient and adequate

breathing space for a vigorous press” therefore, has been

unconstitutionally restricted by the courts below. Gertz v.

Robert Welch, Inc., 418 U.S. at 354 ( Blackman, J., concurring ).

V. THE AWARD OF PUNITIVE DAMAGES AGAINST A

PUBLISHER MUST BE REVERSED WHERE THERE

HAS BEEN NO EVIDENCE WHATEVER THAT THE

PUBLISHER POSSESSED A HIGH DEGREE OF

AWARENESS OF PROBABLE FALSITY OF THE

PUBLICATION.

As noted above, the sole evidence introduced at trial which

tended to show actual malice was Respondent’s denial that she

had uttered the allegedly libelous statements at issue. No

evidence whatever was introduced at the trial which tended to

show actual malice on the part of the publisher. Sverdlik stated

that he had taken notes (later admitted into evidence) at the

time of his conversation with Respondent and that these notes

formed the basis of his story. More noteworthy, however, the

record fails to show that the publisher, The Macon Telegraph

Publishing Company, was aware of the likelihood that it was

circulating false information. In fact, the record demonstrates

that the reporter had recorded in his notes sufficient words to

prove that the article could not have been published with the

“high degree of awareness of probable falseness”, Garrison v.

Louisiana, 379 U.S. 64, 74-75 (1964), required to award

punitive damages.

Additionally, as The Fourth Circuit noted in Williams vy.

City of New York, 508 F.2d 356 (4th Cir. 1974), quoting Mr.

Justice Gray in Lake Shore Michigan Southern Ry. v. Prentice,

147 U.S. 101, 107-108 (1893):

Exemplary or punitive damages being awarded, not

by way of compensation to the sufferer, but by way of

punishment to the offender, and as warning to others

can only be awarded against one who has partici-

pated in the offense. A principal, therefore, though of

course liable to make compensation for injuries done

by its agent, within the scope of his employment,

cannot be held liable for exemplary or punitive

damages, merely by reason of wanton oppressive or

malicious intent on the part of the agent... .

Id. at 360-361.

Therefore, “unless the employer is himself guilty of some

torious act (or omission) because his employee has mis-

behaved, an award punishing the employer and deterring him

and others situate likewise makes no sense at all.” Jd. at 360.'°

The Restatement of Torts is in accord:

It is, however, within the general spirit of the rule

{allowing for vicarious punitive damage awards

against employers] to make liable an employer who

has recklessly employed or retained a servant or em-

ployee who is known to be vicious, if the harm resulted

from that characteristic.... Nor is it unjust that a

person on whose account another has acted should be

responsible for an outrageous act for which he other-

wise would not be if, with full knowledge of the act

10 See also, Prosser, Law of Torts, 32 Tort and Crime ( 4th Ed. 1971) (“This is

particularly true where the employer is a corporation, and the pocket which is

hit is that of the blameless stockholders, whom no one wants to punish.”)

and the way it was done, he ratifies it, or, in cases in

which he would be liable for the act but not subject to

punitive damages, he expresses approval of it. (em-

phasis added).

Restatement (Second) of Torts § 909, comment b.

Each of the examples above illustrating the Restatement

rule has at its core the fundamental principle not only that it is

unfair to punish where there is no notice or knowledge of

wrongdoing but that no useful purpose is served by punishing

in the absence of such notice or knowledge.

Not only is the efficacy of awarding punitive damages

called into question where, as here, the publisher could have no

knowledge of the probable falsity of the article. Without a

requirement that the publisher itself “in fact entertained serious

doubts as to the truth of his publication,” Gertz v. Robert

Welch, Inc., 418 U.S. 323, 335 (1974) there is serious impair-

ment of First Amendment rights. Thus, this Court in New York

Times v. Sullivan required that the same employee must both

publish and know the falsity of the statement in order to cross

the constitutional threshold of actual malice. New York Times

Co. v. Sullivan, 376 U.S. 254, 287 (1964). Additionally, other

Appe!late Courts have prohibited damage awards in the ab-

sence of a clear and convincing showing that the author’s actual

malice was shared by his publisher. Hotchner v. Castillo-Puche,

551 F.2d 910 (2d Cir. 1977); cert. denied sub. nom., Hotchner v.

Doubleday & Co., 434 U.S. 834 (1977); Washington Post Co. v.

Keogh, 365 F.2d 965 (D.C. Cir. 1966); Baldine v. Sharon

Herald Co., 391 F.2d 703 (3rd Cir. 1968); Rosanova v. Playboy

Enterprises, Inc., 411 F. Supp. 440 (S.D. Ga. 1976); Nader v.

de Toledano, 408 A.2d 31 (1979), cert. denied 444 U.S. 1078

(1979).)

The $150,000 punitive damages award in this case, given

the absence of any actual malice on the part of petitioner or its

reporter, highlights the inefficacy, fundamental unfairness and

unconsttutionality of such an award.

Conclusion

For the foregoing reasons the Petition for Certiorari to the

Supreme Court of Georgia should be granted.

*ARTHUR B. HANSON

ARTHUR D. MCKEY

GreGory P. SCHERMER

PAMELA J. BROWN

HANSON, O’BRIEN, BIRNEY & BUTLER

888 Seventeenth Street, N.W.

Suite 1000

Washington, D.C. 20006

(202) 298-6161

Ep S. SELL, III

SELL & MELTON

1414 Georgia Power Building

P.O. Box 229

Macon, Georgia 31297

(912) 746-8521

Attorneys for Macon Telegraph

Publishing Company

* Counsel of Record

Juror: Lumpkin Acted

Like Innocent Man

By Alan Sverdlik

Telegraph Staff Writer

A personality trait of Michael Lumpkin that first aroused

lawmen’s suspicion a year ago convinced at least one juror that

Lumpkin could not have committed the Lubel killings, the juror

said Monday.

Two other members of the jury that acquitted Lumpkin of

murder Friday disclosed in post-trial interviews that they had

already made up their minds before the panel met coilectively

to discuss the case.

Ida Lester, a 62-year-old tailor, said Lumpkin’s calm

demeanor both sitting at the defense table and on the witness

stand made her skeptical that he could have committed two

brutal killings.

“TO ME, HE HAD gone through the whole trial like a

person who was really, really innocent,” said Mrs. Lester. She

added that Lumpkin “was just solid” during District Attorney

Don Thompson’s relentless cross-examination.

The prosecution sought to portray Lumpkin as having no

remorse. “Cold, calculating and matter-of-fact” were some of

the adjectives that Thompson used, as had investigators with

the Bibb County sheriff's when their suspicions heightened in

the week following the Lubel slayings last October.

But Mrs. Lester, observing Lumpkin’s expression as en-

larged color photographs of the bodies were displayed, did not

infer guilt. How, she asked herself, could a defendant be “calm

as a cucumber” if he had been responsible for the scene

depicted in the photographs.

“IT DIDN’T SEEM like anything bothered him,” Mrs.

Lester said. “He acted like he didn’t have a worry in the

world.”

Mrs. Lester said she trembled when Lumpkin took the

stand, thinking he would say something that would give here

second thoughts about his innocence. But his testimony did not

sway her. “I was more nervous than he was,” she conceded.

Betty Elliott, a bus driver for the Bibb County Board of

Education, and Louie A. Bridges, a Robins Air Force Base

employee, said they decided to vote not guilty before deliber-

ations began.

Although they couldn’t be specific, it was sometime within

a day or two before the case went to the jury when they formed

an opinion.

ASKED ABOUT Lumpkin’s testimony, Mrs. Elliott, 51,

replied: ‘Everything he said didn’t tally with what the district

attorney said. But what the district attorney said didn’t tally

with what other people said.”

The juror said she had frequently gone shopping and

forgotten which of her family’s two cars she had taken. So it

didn’t trouble her, she said, that Lumpkin could not keep

straight which car he drove to the Lubel’s Pineworth Road

home on the evening of Oct. 6, 1979.

The testimony of G. Wallace Lumpkin and his wife, which

provided an alibi for their son, made both female jurors do

some soul searching. The jurors, both mothers, wondered what

they would have done had they been Ruth Lumpkin.

“SOMEONE MADE THE statement that anyone would

do anything to prevent their son from going to prison,” Mrs.

Elliott recalled. “Being a mother, I felt (the Lumpkins) would

have told the truth.”

Without elaborating, Mrs. Lester said: “I wouldn’t want

to lie for my child but I wouldn’t want to see him go to the

electric chair either.”

On the first vote, nine jurors voted not guilty. On the

second, acouittal was unanimous.

The deliberations Friday were not reminiscent of the fierce

bickering the jury in the first Lubel murder trial went through in

August. That jury deadlocked after 21 hours. On Friday,

Lumpkin walked out of the courtroom a free man after just

under five hours.

BRIDGES REMEMBERED the judge instructing the ju-

rors neither to have “a big smile” or “a big frown” on their

faces when they settled in the jury box to reveal their verdict.

“Very heartbreaking,” Mrs. Elliott said of Mickey Lubel

and his family. ““They have lost someone very dear.”

‘““My heart goes out to both sides,” said Mrs. Lester. “I

shed a few little tears when the judge dismissed us. My son was

killed on the job in 1975. I am better now but I haven’t gotten

over it. So I know how the Lubels feel.”

65201.

THE MACON TELEGRAPH PUBLISHING COMPANY

ELLIOTT

QUILLIAN, Presiding Judge.

This is an appeal from a verdict and judgment for plaintiff-

appellee Elliott in an action against defendant-appellant pub-

lishing company for libel.

Appellee was a juror in the 12 day retrial of a murder case

in which the defendant was acquitted, the first tnal having

resulted in a mistrial. Three days after the trial concluded, a

reporter for appellant spoke to appellee on the telephone and

questioned her about the trial. As a result the following

appeared in an article about the trial published in appellant’s

newspaper:

“Two other members of the jury that acquitted Lumpkin of

murder Friday disclosed in post-trial interviews that they had

already made up their minds before the panel met collectively

to discuss the case...

“Betty Elliott, a bus driver for the Bibb County Board of

Education, and Louie A. Bridges, a Robins Air Force Base

employee, said they decided to vote not guilty before deliber-

ations began.

“Although they couldn’t be specific, it was some time

within a day or two before the case went to the jury when they

formed an opinion.”

Appellee is the Betty Elliott named in the article, and after

demanding and failing to receive a retraction she commenced

this action under Code Ann. § 105-703 (Ga. L. 1893, p. 131),

alleging that the statements were not made by her and that they

were false and maliciously defamatory. A jury returned a

verdict for appellee of $50,000 actual and $150,000 punitive

damages.

Held:

1. Code Ann. § 105-703, supra, provides: “Any false

and malicious defamation of another in any newspaper,

magazine, or periodical, tending to injure the reputation of

any individual and expose him to public hatred, contempt,

or ridicule, shall constitute a newspaper libel, the publica-

tion of such libelous matter being essential to recovery.”

Appellant asserts that the alleged statement is not

defamatory as a inatter of law.

Except where an alleged writing is not defamatory as

a matter of law, the general rule is that the issue of

defamation is a matter of fact to be determined by a jury.

Atlanta Journal Co. v. Doyal, 82 Ga. App. 321 (3), 330

(60 SE2d 802).

Appellant cites Garland v. State, 211 Ga. 48 (84 SE2d

13) in support of its assertion. Garland v. State was a

criminal defamation case in which it was held as a matter

of law that the defendant’s publication in a newspaper

article concerning a murder conviction that the jury “did

not even deliberate on the case — the verdict was already

made,” was not defamatory of the jury members. The

court found that the words meant that the jury did not

deliberate or consult with one another to form an opinion

as to guilt or innocence and that their collective minds had

arrived at a verdict of guilty when they reached the jury

room.

The instant case is distingishable from Garland y.

State as the writing is capable of the construction that the

appellee had made up her mind to vote not guilty well

before she entered deliberations.

While Garland v. State could find nothing defamatory

in an article indicating that a juror without discussion could

make up his mind as soon as he entered the deliberation

room, it stated that it was improper for “a juror (to) make

up his mind as to guilt or innocence .. . ( before) all of the

evidence has been submitted and the court has instructed

on the law.” Id at 50.

The parties stipulated that the article’s statement that

‘a day or two before the case went to the jury” was a time

when the prosecution had rested. From this it is argued

that the article therefore could not be defamatory as a

matter of law becaus* if the prosecution had not proved

the case beyond a reasonable doubt, saying that a juror

made up her mind after the prosecution rested does not

charge the juror with any improper conduct as the juror

has the nght to have such an opinion at that point in the

trial.

This argument does not recognize that in considering

whether a writing is defamatory as a matter of law, we

look not at the evidence of what the extrinsic circumstances

were at the time indicated in the writing, but at what

construction would be placed upon it by the average

reader. Southeastern Newspapers, Inc. v. Walker, 76 Ga.

App. 57, 60 (44 SE2d 697); Atlanta Journal Co. v. Doyal,

82 Ga. App. 321 (3), 330, supra; Garland v. State, 211 Ga.

44, 48 (84 SE2d 9).

Thus, in the instant case, since the article does not

indicate that the prosecution had rested or that appellee

had heard all of the state’s evidence and found it in-

sufficient to prove guilt, the average reader, not being

aware of these matters from the article and not otherwise

having the knowledge that the prosecution had rested at

the time appellee allegedly decided to vote not guilty,

could quite easily come to the understanding that appellee

had not properly done her duty as a juror by deciding the

case without hearing all of the evidence. In other words,

the article is capable of having more than one meaning.

‘| W )here words are capable of two meanings, one of

which would be libelous and actionable and the other not,

it is for the jury to say, under all the circumstances

surrounding its publication, which of the two meanings will

be attributed to it by those to whom it is addressed or by

whom it is read. [Cit.]” Reece v. Grissom, 154 Ga. App.

194, 195 (267 SE2d 839).

Accordingly, taking the plain meaning of the language

of the article as would an average reader thereof, we

cannot say as a matter of law that the article is not

defamatory. Horton v. Georgian Co., 175 Ga. 261 (3)

(165 SE 443); Abernathy v. News Publishing Co., 45 Ga.

App. 693 (3) (165 SE 924); Praireland &c. of Ga. v.

Thompson, 135 Ga. App. 73 (2) (217 SE2d 296).

2. There is no merit in appellant’s contention that it is

not liable for the punitive damages awarded because

‘actual malice’”’ had not been proven.

Appellant’s arguments based on constitutional law

requiring separate evidence of a Gefendant’s “actual mal-

ice” before a defamation can be found applies to defama-

tions against public officials and public figures and are

inapposite in this case as there is no evidence that appellee

was a public figure or a public official.

“Code § 105-2002 provides as follows: ‘In every tort

there may be aggravating circumstances, either in the act

or the intention, and in that event the jury may give

additional damages, either to deter the wrongdoer from

repeating the trespass or as compensation for the wounded

feelings of the plaintiff.’... Malice is an aggravating cir-

cumstance, and upon proof thereof punitive damages may

be awarded to deter the wrongdoer ( but not for wounded

feelings under Code § 105-2002), and this is true even

though the measure of damages is limited only by the

enlightened conscience of impartial jurors, as provided by

Code § 105-2003. [Cits.] Our Code, § 105-706, provides

as follows: ‘In all actions for printed or spoken defama-

tion, malice is inferred from the character of the charge.

The existence of malice may be rebutted by proof, which

shall in all cases go in mitigation of damages, and in cases

of privileged communications it shall be in bar of the

recovery.’” Atlanta Journal Co. v. Doyal, 82 Ga. App.

321 (4), 332, supra.

“As to proof of malice, proof that the writing is false,

and that it maligns the private character or mercantile

standing of another, is itself evidence of malice. [Cits.]...

‘Publication of a false statement which tends to injure

the reputation of another and expose him to public hatred,

contempt or ridicule, will be presumed to be a malicious

publication; the burden is on the publisher to rebut this

presumption. [Cit.]”’ Montgomery v. Pacific & Sou. Co.,

131 Ga. App. 712, 717 (206 SE2d 631).

Thus, in the instant case, where appellee was neither a

public figure nor a public official and there was no

evidence that the defense of privilege was applicable,

malice was inferrable from the nature and circumstances of

the alleged defamation. Although appellant presented

evidence that it did not act maliciously, it was apparently

not sufficient to rebut the inference of malice. We find the

evidence sufficient to authorize the jury to find the exist-

ence of a false and malicious defamation. That being so,

the malice was also an aggravating circumstance author-

izing the imposition of punitive damages under Code Ann.

§ 105-2002 to deter the wrongdoer. Atlanta Journal Co. v.

Doyal, 82 Ga. App. 321 (4), 333, supra.

3. It is contended that the awards of actual and

punitive damages were excessive.

“***When a case comes before this court, after the

refusal of a new trial by the presiding judge, it comes not

only with the presumption in favor of the verdict, but also

stamped with the approval of the judge who tried the case,

and where no prejudice or bias or corrupt means in

reaching the verdict appear, we are not authorized to set it

aside as being excessive. [Cits.]”’[Cit.] ‘This court does

not have the broad discretionary powers invested in trial

courts to set aside verdicts, and where the trial court before

whom the witnesses appeared had the opportunity of

personally observing the witneses, including the plaintiff on

the stand, has approved the verdict, this court is without

power to interfere unless it is clear from the record that the

verdict of the jury was prejudiced or biased or was

procured by corrupt means. [Cit.]’ [Cit.]” Melton v. Bow,

145 Ga. App. 272 (4), 274-5 (243 SE2d 590).

In the absence of any showing of prejudice or bias or

corrupt means in reaching the verdict or any abuse of the

trial court’s discretion in refusing to overturn the verdict,

we cannot say that the awards of actual and punitive

damages were excessive as a matter of law.

4. Error is enumerated because three witnesses for

appellee were permitted, over objection, to testify as to

what the alleged defamatory language meant to them.

Libel is either per se or per quod. Defamatory words

which are actionable per se are those which are recognized

as injurious on their face — without the aid of extrinsic

proof. However, if the defamatory character of the words

do not appear on their face but only become defamatory

by the aid of extrinsic facts, they are not defamatory per se,

but per quod, and are said to require innuendo. See

generally 53 CJS 42-43, Libel and Slander § 8. “The office

of an innuendo is to explain that which is of doubtful or

ambiguous meaning in the language of the publication, but

cannot enlarge the meaning of words plainly expressed

therein.” Park & Iverson v. Piedmont &c. Life Ins. Co., 51

Ga. 510 (1). Where the words used are capable of having

two or more different meanings, they are ambiguous and

the plaintiff may allege the meaning with which he claims

they were published, and it is for the jury to determine

whether they were so published. Blackstock v. Fisher, 95

Ga. App. 117, 121 (97 SE2d 322). The testimony of

readers of the alleged defamatory language as to what they

understood the words to mean may be admitted where the

meaning is doubtful or ambiguous. 53 CJS 311, Libel and

Slander § 201b. Compare, Kaplan v. Edmondson, 68 Ga.

App. 151 (1) (22 SE2d 343). See, 3 Restatement of

Torts(2d) 164, § 563e.

The language of the article in the instant case was not

libelous per se and the trial court correctly did not charge

the jury to that effect. As we have heretofore indicated,

where the alleged language is not ruled defamatory or not

defamatory as a matter of law, such language means what

the average reader construes it to mean. That being so, the

testimony of witnesses as to what the language means to

them is relevant and admissible evidence on the issue of

the meaning of ambiguous language. Reece v. Grissom,

154 Ga. App. 194, supra, cited by appellant, is inapposite

as the alleged language therein was held to be not

defamatory as a matter of law.

5. The trial court did not err in giving appellee’s third

and fourth requests to charge. As indicated above, the

alleged language was not libelous per se and was capable

of more than one meaning. The contentions of the parties

and the evidence clearly show this. Therefore, the chal-

lenged charges were properly adjusted to the evidence.

6. Appellant’s fourth request to charge was amply

covered by the charge given which defined newspaper libel

in the language of Code Ann. § 105-703, supra.

7. The remaining allegations of error are either

resolved by the foregoing findings or are not meritorious.

Judgment affirmed. Shulman, C. J., and Carley, J., concur.

Court of Appeals

of the State of Georgia

ATLANTA, February 8, 1983

The Honorable Court of Appeals met pursuant to adjournment.

The following judgment was rendered:

65201.

THE MACON TELEGRAPH PUBLISHING Co.

Vv.

Betty H. E.L.iott (250977)

This case came before this court on appea! from the State

Court of Bibb County; and, after argument had, it is considered

and adjudged that the judgment of the court below be af-

firmed.

Shulman, P.J., Quillian, C.J., Carley, J., concur.

BILL oF Costs, $30.00

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta, NOV 10 1983

I certify that the above is a true extract from the minutes of

the Court of Appeals of Georgia, and that Ed S. Sell, III paid

the above bill of costs.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

ALTON HAWK

Clerk.

In The

State Court of Bibb County

Case No. 25097

ORDER ON REMITTITUR

Betty H. ELLiIott

VS.

THE MACON TELEGRAPH PUBLISHING COMPANY

IT IS ORDERED that the judgment of the Court of

Appeals of Georgia affirming the judgment of the State Court

of Bibb County in the foregoing case be made the judgment of

the State Court of Bibb County.

This 14th day of November, 1983.

J. TAYLOR PHILLIPS

Judge, State Court of Bibb County

Court of Appeals

of the State of Georgia

ATLANTA, March 10, 1983

The Honorable Court of Appeals met pursuant to adjournment.

The following order was passed:

65201.

THE MACON TELEGRAPH PUBLISHING CO

Vv.

Betty H. ELLiorrt.

Upon consideration of the motion for a rehearing filed in

this case, it is ordered that it be hereby denied.

NOTE: Revised pp. 6 thru 13 to replace previous pp. 6

thru 12 in original opinion. (Div. 2 rewritten and

Div. 3 added). New pages 6 thru 13 attached.

[ CERTIFICATION OMITTED IN PRINTING ]

65201. THE MACON TELEGRAPH PUBLISHING COMPANY

ELLIOTT

QUILLIAN, Presiding Judge.

This is an appeal from a verdict and judgment for plaintiff-

appellee Elliott in an action against defendant-appellant pub-

lishing company for libel.

Appellee was a juror in the 12 day retrial of a murder case

in which the defendant was acquitted, the first trial having

resulted in a mistrial. Three days after the trial concluded, a

reporter for appellant spoke to appellee on the telephone and

questioned her about the trial. As a result the following

appeared in an article about the trial published in appellant’s

newspaper:

“Two other members of the jury that acquitted Lumpkin of

murder Friday disclosed in post-trial interviews that they had

already made up their minds before the panel met collectively

to discuss the case...

“Betty Elliott, a bus criver for the Bibb County Board of

Education, and Louie A. Bridges, a Robins Air Force Base

employee, said they decided to vote nut quilty before deliber-

auons began.

“Although they couldn’t be specific, it was some time

within a day or two before the case went to the jury when they

formed an opinion.”

Appellee is the Betty Elliott named in the article, and after

demanding and failing to receive a retraction she commenced

this action under Code Ann. § 105-703 (Ga. L. 1893, p. 131),

alleging that the statements were not made by her and that they

were false and maliciously defamatory. A jury returned a

verdict for appellee of $50,000 actual and $150,000 punitive

damages.

Held:

1. Code Ann. § 105-703, supra, provides: “Any false

and malicious defamation of another in any newspaper,

magazine, or periodical, tending to injure the reputation of

any individual and expose him to public hatred, contempt,

or ridicule, shall constitute a newspaper libel, the publica-

tion of such libelous matter being essential to recovery.”

Appellant asserts that the alleged statement is not

defamatory as a matter of law.

Except where an alleged writing is not defamatory as

a matter of law, the general rule is that the issue of

defamation is a matter of fact to be determined by a jury.

Atlanta Journal Co. v. Doyal, 82 Ga. App. 321 (3), 330

(60 SE2d 802).

Appellant cites Garland v. State, 211 Ga. 48 (84 SE2d

13) in support of its assertion. Garland v. State was a

criminal defamation case in which it was held as a matter

of law that the defendant’s publication in a newspaper

article concerning a murder conviction that the jury “did

not even deliberate on the case — the verdict was already

made,” was not defamatory of the jury members. The

court found that the words meant that the jury did not

deliberate or consult with one another to form an opinion

as to guilt or innocence and that their collective minds had

arrived at a verdict of guilty when they reached the jury

room.

The instant case is distinguishable from Garland y.

State as the writing is capable of the construction that the

appellee had made up her mind to vote not guilty well

before she entered deliberations.

While Garland v. State could find nothing defamatory

in an article indicating that a juror without discussion could

make up his mind as soon as he entered the deliberation

room, it stated that it was improper for “a juror (to) make

up his mind as to guilt or innocence .. . ( before) all of the

evidence has been submitted and the court has instructed

on the law.” Id at 50.

The parties stipulated that the article’s statement that

‘a day or two before the case went to the jury” was a time

when the prosecution had rested. From this it is argued

that the article therefore could not be defamatory as a

matter of law because if the prosecution had not proved

the case beyond a reasonable doubt, saying that a juror

made up her mind after the prosecution rested does not

charge the juror with any improper conduct as the juror

has the right to have such an opinion at that point in the

trial.

This argument does not recognize that in considering

whether a writing is defamatory as a matter of law, we

look not at the evidence of what the extrinsic circumstances

were at the time indicated in the writing, but at what

construction would be piaced upon it by the average

reader. Southeastern Newspapers, Inc. v. Walker, 76 Ga.

App. 57, 60 (44 SE2d 697); Atlanta Journal Co. v. Doyal,

82 Ga. App. 321 (3). 330, supra; Garland v. State, 211 Ga.

44, 48 (84 SE2d 9).

Thus, in the instant case, since the article does not

indicate that the prosecution had rested or that appellee

had heard all of the state’s evidence and found it in-

sufficient to prove guilt, the average reader, not being

aware of these matters from the article and not otherwise

having the knowledge that the prosecution had rested at

the time appellee allegedly decided to vote not guilty,

could quite easily come to the understanding that appellee

had not properly done her duty as a juror by deciding the

case without hearing all of the evidence. In other words,

the article is capable of having more than one meaning.

“| W | here words are capable of two meanings, one of

which would be libelous and actionable and the other not,

it is for the jury to say, under all the circumstances

surrounding its publication, which of the two meanings will

be attributed to it by those to whom it is addressed or by

whom it is read. [Cit.]” Reece v. Grissom, 154 Ga. App.

194, 195 (267 SE2d 839).

Accordingly, taking the plain meaning of the lan-

guage of the article as would an average reader thereof, we

cannot say as a matter of law that the article is not

defamatory. Horton v. Georgia Co., 175 Ga. 261 (3) (165

SE2d 443); Abernathy v. News Publishing Co., 45 Ga. App.

693 (3) (165 SE2d 924); Praireland &c. of Ga. v. Thomp-

son, 135 Ga. App. 73 (2) (217SE2d 296).

2. Appellant claims the trial court erred in denying its

motions for directed verdict and judgment notwithstanding

the verdict on the issue of its liability for punitive damages.

Gertz v. Welch, 418 U. S. 323, 347-50 (94 SC 2997,

41 LE2d 789) held that while a private (as opposed to a

public figure or public official) defamation plaintiff may

recover actual damages without a showing of actual mal-

ice, such a private plaintiff cannot recover punitive dam-

ages without a showing of actual malice on the part of the

defendant; that is, “with knowledge that (the defamation )

was false or with reckles disregard of whether it was false

or not.” New York Times v. Sullivan, 376 U. S. 254, 279

(84 SC 710, 11 LE2d 686). This holding was recognized

in Williams v. Trust Co. of Ga., 140 Ga. App. 49 (1), 52

(230 SE2d 45).

Appellant argues that there is no evidence that its

reporter had knowledge that what he wrote was false or

that he wrote the story with reckless disregard for the truth.

This is based on the reporter’s testimony that what he

wrote and was published was what appellee had told him;

that is, that it was true.

On the other hand appellee maintains that based on

her testimony that the article was false because she did not

tell the reporter the things he published, the actual malice

requirement for punitive damages was met as a fictional

story meets the actual malice requirement; that is, that the

reporter knew it was false when the article was published.

Thus, there was conflicting testimony on the issue of

whether the publication was made with knowledge of its

falsity. Where evidence is in conflict on an issue and does

not demand a verdict, it is error to direct a verdict thereon.

OCGA 9-11-50 (a) (Code Ann. § 81A-150 (a)). From

our review of the evidence and the tral court’s charge on

this issue, we find that the jury could reasonably conclude

that the reporter, and thus appellant, was aware that the

Statements attributed to appellee were false when they

were published and established actual malice.

We find no merit in appellant’s contention that even if

the reporter had knowledge of falsity it could not be

imputed to appellant, as the rule in Georgia in libel is that

the malicious conduct of an employee is imputed to the

employer provided it is within the scope of his authority.

Atlanta Journal Co. v. Dayal, 82 Ga. App. 321, 335, supra.

Accord, Garren v. Southland Corp., 237 Ga. 484, 485 (228

SE2d 870).

Therefore the trial court did not err in denying

appellant’s motion for directed verdict and judgment not-

withstanding the verdict.

3. The trial court did not err in denying appellant’s

motion for a new trial made on the general grounds

contending that there was no evidence that it libelled

appellee or that appellee was entitled to punitive damages.

“We have reviewed the record and find that the verdict

was authorized by the evidence. [Cits.] The evidence

presented questions for the jury which were resolved in

favor of the ( prevailing party). [Cit.] The evidence did

not demand a verdict (for the losing party) and the jury

was authorized by the evidence to reach a finding (for the

prevailing party). [Cit.] The jury verdict had the approv-

al of the trial judge, and after verdict the evidence is to be

construed in the light most favorable to the prevailing

party and every presumption and inference is in favor of

sustaining the verdict. [Cit.] And, if there is any evidence

to sustain the verdict of the jury, an appellate court will not

disturb it. [Cit.]” Suber v. Fountain, 151 Ga. App. 283

(1), 285 (259 SE2d 685).

4. It is contended that the awards of actual and

punitive damages were excessive.

“*“When a case comes before this court, after the

refusal of a new trial by the presiding judge, it comes not

only with the presumption in favor of the verdict, but also

stamped with the approval of the judge who tried the case,

and where no prejudice or bias or corrupt means in

reaching the verdict appear, we are not authorized to set it

aside as being excessive [Cits.]”’’ [Cit.] ‘This court does

not have the broad discretionary powers invested in trial

courts to set aside verdicts, and where the trial court before

whom the witnesses appeared had the oportunity of per-

sonally observing the witnesses, including the plainuff on

the stand, has approved the verdict, this court is without

power to interfere unless it is clear from the record that the

verdict of the jury was prejudiced or biased or was

procured by corrupt means. [Cit.]” [Cit.]”” Melton v. Bow,

145 Ga. App. 272 (4), 274-5 (243 SE2d 590).

In the absence of any showing of prejudice or bias or

corrupt means in reaching the verdict or any abuse of the

trial court’s discretion in refusing to overturn the verdict,

we cannot say that the awards of actual and punitive

damages were excessive as a matter of law.

5. Error is enumerated because three witnesses for

appellee were permitted, over objection, to testify as to

what the alleged defamatory language meant to them.

Libel is either per se or per quod. Defamatory words

which are actionable per se are those which are recognized

as injurious on their face — without the aid of extrinsic

proof. However, if the defamatory character of the words

do not appear on their face but only become defamatory

by the aid of extrinsic facts, they are not defamatory per se,

but per quod, and are said to require innuendo. See

generally 53 CJS 42-43, Libel and Slander § 8. “The office

of an innuendo is to explain that which is of doubtful or

ambiguous meaning in the language of the publication, but

cannot enlarge the meaning of words plainly expressed

th rein.” Park & Iverson v. Piedmont &c. Life Ins. Co., 51

Ga. 510 (1). Where the words used are capable of having

two or more different meanings, they are ambiguous and

the plaintiff may allege the meaning with which he claims

they were published, and it is for the jury to determine

whether they were so published. Blackstock v. Fisher, 95

Ga. App. 117, 121 (97 SE2d 322). The testimony of

readers of the alleged defamatory language as to what they

understood the words to mean may be admitted where the

meaning is doubtful or ambiguous. 53 CJS 311, Libel and

Slander § 20lb. Compare, Kaplan v. Edmondson, 68 Ga.

App. 151 (1) (22 SE2d 343). See, 3 Restatement of Torts

(2d) 164, § 563e.

The language of the article in the instant case was not

libelous per se and the trial court correctly did not charge

the jury to that effect. As we have heretofore indicated,

where the alleged language is not ruled defamatory or not

defamatory as a matter of law, such language means what

the average reader construes it to mean. That being so, the

testimony of witnesses as to what the language means to

them is relevant and admissible evidence on the issue of

the meaning of ambiguous language. Reece v. Grissom,

154 Ga. App. 194, supra, cited by appellant, is inapposite

as the alleged language therein was held to be not

defamatory as a matter of law.

6. The trial court did not err in giving appellee’s third

and fourth requests to charge. As indicated above, the

alleged language was not libelous per se and was capable

of more than one meaning. The contentions of the parties

and the evidence clearly show this. Therefore, the chal-

lenged charges were properly adjusted to the evidence.

7. Appellant’s fourth request to charge was amply

covered by the charge given which defined newspaper libel

in the language of Code Ann. § 105-703, supra.

8. The remaining allegations of error are either

resolved by the foregoing findings or are not meritorious.

Judgment affirmed. Shulman, C. J., and Carley, J., concur.

In The

Supreme Court of Georgia

Decided: OCT 4, 1983

39808.

THE MACON TELEGRAPH PUBLISHING COMPANY

Vv.

Betty H. ELLiorrt.

PER CURIAM.

After plenary consideration of this matter, it is found not to

satisfy the criteria for the grant of certiorari and the writ is

therefore vacated.

Wnit of certiorari vacated. Hill, C.J., Smith, J., Bell, J.,

and Judge Jere F. White concur; Marshall, P.J., Clarke, J..

and Weltner, J., dissent; Gregory, J., disqualified.

(Appendix F)

Clerk’s Office, Supreme Court of Georgia

ATLANTA 10/25/83

The motion for a rehearing was denied today:

Case No. 39808, The Macon Telegraph Publ. Co. v.

Elliott

Hill, C.J., Smith & Bell, JJ., and Judge White concur.

Marshall, PJ, Clarke & Weltner, JJ., dissent. Gregory, J.,

disqualified.

Yours very truly,

Mrs. JOLINE B. WILLIAMS, Clerk

Court of Appeals

of the State of Georgia

ATLANTA, December 21, 1983

The Honorable Court of Appeals met pursuant to adjournment.

The following order was passed:

65201.

MACON TELEGRAPH PUBLISHING COMPANY

¥,

Betty H. ELLIott

Upon motion to recall remittitur and to grant stay filed by

the Appellant in the above style case, it is ordered that the same

be, and is hereby denied.

[ CERTIFICATION OMITTED IN PRINTING ]

Court of Appeals

of the State of Georgia

Clerk’s Office

Atlanta, December 21, 1983

I hereby certify that the foregoing page attached hereto

contain true and complete copy of an order in case 65201.

MACON TELEGRAPH PUBLISHING COMPANY v.

BETTY H. ELLIOTT of the Court of Appeals of Georgia in the

case therein stated, as appears from the original of file in this

office.

Witness my signature and the seal

of said Court hereto affixed the day

and year above written.

ALTON HAWK

Clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.