Petition for Writ of Certiorari — Port Packet Corp. v. Lewis

g4-1722 = It

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1984

No. 85-

PoRT PACKET CORPORATION,

Petitioner

V.

E. GREY LEWIS and CAROLYN G. LEWIS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

HARVEY B. COHEN

JOANNE F. ALPER

COHEN, GETTINGS, ALPER &

DUNHAM

1400 North Uhle Street

Suite 500

Arlington, Virginia 22201

(703) 525-2260

Cow nsel for Petitioner

May 2, 1985

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

Office-Supreme Court, Us. |

EILED

QAR 1985

ALEXANDER, L- STEVAS, |

| CHERK

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SI 655 rr leis bo. a bs bods Civ acd i oeeilies

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CONSTITUTIONAL PROVISIONS INVOLVED ...........

SU OT Te Oe an Fk ee a sccee

IE CES Cien i dac cia caceccksceesass

MATERIAL PROCEEDINGS IN THE LOWER COURTS .

REASONS FOR GRANTING THE WRIT................

i re ere

II. The Problems of Negligence ...................

Bh, WERE Te POD oo on vs ccc ccs ccceves

B. The Reasonable-Care Standard is Elusive ....

C. Empirical Data Shows that the Press is Es-

D.

ONAOAIAIwwnnd Ww Wwe

—

—

pecially Vulnerable to jury Prejudice ........

The Technology Which Makes Instantaneous

Communications Possible Makes Negligence an

Oppressive Standard For Recovery .......... 13

III. Alternative Standards Are Available Which Meet

the Test of Constitutionality ................... ‘14

A. The Majority Opinion in Gertz is Illusory and a

Constitutional Standard is Required ......... 14

B. This Court Should Adopt a Standard of Gross

Irresponsibility to Be Used in All State Courts

for Recovery by Private Individuals in Defama-

tion Cases Against the News Media ......... 15

CIN Sc hee ok on on Oks een pwidancasak cimens 16

APPENDIX

OPINION AND JUDGMENT OF THE SUPREME COURT OF

i RRP ey ear Rites wena 19

I 06a Seek Loukas Seed bh haa ode sc cxhnwen 60a

ii

CITATIONS

CASES: Page

AAFCO Heating and Air Conditioning Co. v. Northwest

Publications, Inc., 162 Ind. App. 671, 321 N.E.2d

500 (Ind. App 1974) .........ccee cece cece eeees 10

Associated Press v. Walker, 380 U.S. 130 (1967) ...... 5

Bose Inc. v. Consumers Union of the United States

U.S. , 104 S.Ct. 1949 (1984) .........2.06- 5

Chapadeau v. Utica Observer-Dispatch, Inc. 38 N.Y.2d

196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975) ..... 15

Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70

(We Va: I9BD inv vnine vnadninvdaes ts teeenneieess 8

Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590

S. W.2d 840 (1979), cert. denied 444 U.S. 1076 (1980) 8

Gaeta v. New York News, Inc. 62 N.Y.2d 340, 474

N.Y.S.2d 82, 465 N.E.2d 802 (1984) ............. 15

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

Gobin v. Globe Publishing Co., 216 Kan. 223, 531 P.2d 76

CUTE ig chin Hcp he SE BE es ae os 8

Green v. Alton Telegraph Printing Co., 107 Ill. App.3d

755, 4°8 N.E.2d 208 (Ill. Ct. App. 1982) ......... 12

Jones v. Sun Publishing Co., Inc., 278S.C. 12, 292S.E.2d

23 (1982), cert. denied, 459 U.S. 944 (1983) ...... 8

Kohn v. West Hawaii Today, Inc., 656 P.2d 79, (Ha. 1982)

Madison v. Yunker, 180 Mont. 54, 589 P.2d 126 (1978) 9

Martin v. Griffin Television, Inc., 549 P.2d 85

Ca TT) ain osc cs cixseg sa sned eee eis 8

McCall v. Courier-Journal and Louisville Times, 623

S.W.2d 802 (Ken. 1981), cert. denied, 456 U.S. 975

00

COREE os cian cna sees a0 bse chee nee kere een 8

Memphis Publishing Co. v. Nichols, 569 S. W.2d 412 (Ten.

I goin kkk ce hud ad cbaass boeken 8

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 5, 11

Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 560

POF TENG CIGTE on dnc kccnntancaenteeeanasa sures 8

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) . 5, 14

iii

Citations Continued

Page

Seegmiller v. KSL, Inc. 626 P.2d 968 (Utah 1981) .... 8

Time, Inc., v. Hill, 385 U.S. 374 (1967) ............. 9, 10

Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (1976) . x

Waldbaum v. Fairchild Publications, inc., 627 F.2d 1287

SRN SEE aaa aie ae eas 10

Walker v. Colorado Springs Sun, Inc., 188 Col. 86, 538

P.2d 450, cert. denied, 423 U.S. 1025 (1975) .... 10, 11

CONSTITUTIONAL PROVISIONS:

U.S. Constitution, amend I ..................... passim

U.S. Constitution, Article I, Section 8 .............. 2,14

U.S. Constitution, amend XIV ..................... 2,9

SECONDARY AUTHORITIES:

Anderson, Libel and Press Self-Censorship, 53 Texas L.

| Ee a SER ee ne ee 10

Franklin, Suing the Media for Libel: A Litigation Study,

1981 American Bar Foundation Research J. 795

AE SN ond dae $s hid 6 kde be ckka 12

Franklin, Winner and Losers and Why: A Study of Defa-

mation Litigation, 1980 American Bar Foundation

Moments a. GOT CIOBO) onc occ cic cccnccecncene il

Green, The Duty to Give Accurate Information, 12

U.C.L.A. L. Rev. 466 (1965) ..........0..50055, 10

Kalven, The Reasonable Man and the First Amendment,

1967 Sup. Ct. Rev. 267 (1967) ................... 13

Defamation Trials and Damage Awards—U pdating the

Franklin Studies, 4 Libel Defense Resource Center

Bulletin 2 (August 15, 1982) .................... 12

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

PORT PACKET CORPORATION,

Petitioner,

V.

E. GREY LEWIS AND CAROLYN G. LEWIS,

Respondents

PETITION FOR A WRI? OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

The Petitioner, Port Packet Corporation, respectfully prays

that a Writ of Certiorari issue to review the judgment and

opinion of the Supreme Court of Virginia entered in this pro-

ceeding on February 1, 1985.

OPINION BELOW

The opinion of the Supreme Court of Virginia is reported as

Gazette, Inc. v. Harris, __— Va. , 1 V.L.R. 783, 325

S. E.2d 713 (1985) and is reprinted in the Appendix hereto.' No

opinion was rendered by the Circuit Court of the City of

Alexandria.

‘Respondents, Mr. and Mrs. Lewis, are also filing a petition for certiorari

with this Court. The Appendix herein will be used by counsel in that petition

as well.

JURISDICTION

The judgment of the Supreme Court of Virginia was entered

on February 1, 1985, and this Petition for Certiorari is filed

within ninety days of that date pursuant to 28 U.S.C. § 2101(c).

This Court's jurisdiction is invoked under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Whether, in defamation suits by private individuals against

media defendants, the adoption by the States of variant simple

negligence standards of liability is inconsistent with the protec-

tion afforded freedom of speech and the press by the Constitu-

tion, and therefore necessitates a national standard other than

simple negligence to be established by this Court.

CONSTITUTIONAL PROVISIONS INVOLVED

The provisions of the Constitution of the United States which

are involved in this case as applied to the States through the

due process clause of the Fourteenth Amendment are:

The First Amendment which provides in pertinent part as

follows:

“Congress shall make no law . . . abridging the freedom

of speech, or of the press... ”

Article I, Section 8, which provides in pertinent part as

follows:

“The Congress shall have the Power to . . . regulate

commerce . . . among the several States... . ”

STATEMENT OF THE CASE

This is a libel action by a husband and wife, E. Grey Lewis

and Carolyn G. Lewis (respondents) against a newspaper, The

Alexandria Port Packet (petitioner) for statements published

in an article on a matter of public or general concern: the

growing problem of child abuse. The jury returned a verdict for

the respondents of $50,000 compensatory damages and

$100,000 punitive damages, despite the fact that the article in

A tt

question never named the respondents or their child. The

article is reproduced herein in the Appendix at p. 60a.

STATEMENT OF FACTS

The Port Packet is a small weekly newspaper published in

Alexandria, Virginia. At the time of this litigation, it employed

an editor-publisher, who was an adjunct professor in the De-

partment of Journalism at George Washington University, and

two full-time reporters. It is designed as a small journal for

local people. The newspaper's gross annual sales are $750,000,

its net income minus $3,681, and its net worth $21,303.

In the summer of 1980, the Port Packet published a two-part

series on child abuse. In his investigation for the story, one of

the newspaper's reporters, Adrian Higgins, spoke with Ser-

geant Uhrig, head of the Youth Services Division of the Alex-

andria Police Department. Mr. Higgins considered Sergeant

Uhrig to be a reliable source. During this telephone con-

versation, Mr. Higgins was told by Sergeant Uhrig of two

suspicious deaths of small children that the police were inves-

tigating as homicides. Sergeant Uhrig did not identify the

children, and the reporter did not know the targets of the

investigations, nor even whether the children were from

Alexandria. \

Relying on the information obtained from Sergeant Uhrig,

and believing that Sergeant Uhrig was handling the investiga-

tions, Mr. Higgins incorporated in his child-abuse article an

account of the death of a nine-month child, to whom he gave a

fictitious name, in an Alexandria hospital in June of that year.

The child was the Lewises’ son. Although there was no mention

of them in the article, and no indication of who may have

inflicted the suspected abuse, the Lewises brought this suit.

MATERIAL PROCEEDINGS IN THE LOWER COURTS

The Lewises’ libel action against the Port Packet was tried

for four days before a jury in the Circuit Court of the City of

Alexandria.

At the conclusion of the Lewises’ evidence, the Port Packet

moved to strike the claims for compensatory and punitive

damages on the grounds that the Lewises had failed to prove by

any standard of evidence, that the allegedly defamatory state-

ments were “of and concerning” the plaintiffs, or that they

were published either with the knowledge that they were false

or with reckless disregard for their truth. The court denied this

motion, and at the close of the evidence, allowed the claims for

compensatory and punitive damages to go to the jury.

Prior to the trial of this case, the Virginia Supreme Court

had not announced a decision under the guidelines of this

Court's decision in Gertz v. Welch, 418 U.S. 323 (1974) as to the

standard required for recovery of compensatory damages by a

private individual plaintiff in a defamation action. Without

controlling precedent from the Virginia Supreme Court, the

trial court instructed the jury, over the defendant's objections,

that the standard for recovery of compensatory damages was

simple negligence, the failure to use ordinary care.

The jury returned a verdict in favor of the Lewises in the

amount of $50,000 compensatory damages and $100,000

punitive damages.

The Port Packet’s motion to set aside the verdict and enter

judgment in its favor, or in the alternative to grant a new trial,

was denied and judgment was entered on the jury verdict both

as to compensatory and punitive damages.

The Port Packet filed a timely petition for appeal to the

Virginia Supreme Court which granted an appeal. One of the

major errors raised in the Port Packet’s brief on appeal was the

trial court’s instructions to the jury on a negligence standard

for recovery of compensatory damages. Three other cases

came before the Virginia Supreme Court raising that same

issue, and those cases were consolidated with this case for the

purposes of opinion.* On February 1, 1985 the Court issued its

The Gazette, Inc. v. Harris, Record No. 830758, Charlottesville News-

papers, Inc., v. Matthews, Record No. 830526, Port Packet Corporation v.

Lewis, Record No. 830651, Fleming v. Moore, Record No. 831446.

opinion in which it adopted for the courts of Virginia a negli-

gence standard for recovery of compensatory damages for def-

amation by private individuals. Further, the Court upon its

independent review of the trial record as mandated by this

Court's decision in Bose, Inc. v. Consumers Union of the Unit-

ed States, Inc., ___. U.S. , 104 S.Ct. 1949 (1984) deter-

mined that there was insufficient evidence of New York Times

malice to support the jury's award of punitive damages and

accordingly reversed that portion of the verdict and judgment.

REASONS FOR GRANTING CERTIORARI

I. Historical Background

Since the landmark decision in New York Times Co. v. Sul-

livan, 376 U.S. 254 (1964), this Court has wrestled with the

problem of the appropriate constitutional standards required

for recovery in defamation cases. New York Times held that ina

civil action for defamation by a public official against a news-

paper, the Constitution required clear and convincing proof

that the statement was uttered with “knowledge of its falsity or

with reckless disregard of whether it was false or not.” Jd. at

280. This standard of liability was subsequently extended to

public figures. Associated Press v. Walker, 380 U.S. 130 (1967).

The trend of this Court's establishing national standards defi-

ning the parameters for recovery in defamation cases in order

to protect the constitutional guarantees of freedom of speech

and the press culminated in a plurality decision requiring proof

of New York Times malice in cases in which the subject matter

of the defamation was of public concern or general interest.

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

However, just three years later, a reluctant bare majority of

this Court stepped back from its prior record of nationalizing

standards and in so doing partially stripped the press of its

First Amendment protection in suits by private individuals.

The decision in Gertz v. Robert Welch Inc., 418 U.S. 323 ( 1974),

de facto overruled Rosenbloom and held that “so long as they do

not impose liability without fault, the States may define for

themselves the appropriate standard of liability for a publisher

or broadeaster of defamatory falsehood injurious to a private

individual.” Jd. at 347. This decision, and the cases decided by

the state courts since, have created irreconcilable confusion in

the courtrooms and the newsrooms of the country.

In essence, the ruling in Gertz held that in a defamation case

between an individual and a publisher on any matter, including

one of public concern, the publisher may be held liable upon no

more than proof of simple negligence.

II. The Problems of Negligence

A review of the state court decisions since Gertz shows that a

simple negligence standard does not provide the press with

adequate protection and has a chilling effect on publishers. The

results of these post-Gertz decisions demonstrate that leaving

the standard of recovery to the individual states does not

satisfy or adequately fulfill this Court’s responsibility to pro-

tect the First Amendment to the United States Constitution.

Since the decision in Gertz, many of the states have struggled

in their adoption of varying standards in defamation cases.’ In

’Thirty-one states (including Virginia) have adopted a simple negligence

standard. See, Browning v. Birmingham News, 348 So. 2d 455 (Ala. 1977);

Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 560 P.2d 1216 (1977);

Dodrill v. Arkansas Democrat Co., 265 Ark. 638, 590 S. W.2d 840 (1979), cert.

denied, 444 U.S. 1076 (1980); Phillips v. Evening Star Newspaper Co., 424

A.2d 78 (D.C. 1980), cert. denied, 451 U.S. 989 (1981); Corbett v. Register

Publishing Co., 38 Conn. Supp. 4, 356 A.2d 472 (1975); Miami Herald

Publishing Co. v. Ane, 423 So.2d 376 (Fla. App. 1982); Savannah News-Press

Div. v. Whetsell, 149 Ga. App. 233, 254 S.E.2d 151 (1979); Cahill v. Hawaiiam

Paradise Park Corp., 56 Hawaii 522, 543 P.2d 1356 (1975); Bandelin v.

Pietsch, 98 Idaho 337, 563 P.2d 395, cert. denied, 434 U.S. 891 (1977); Troman

v. Wood, 62 Ill. 2d 184, 340 N.E.2d 292 (1975); Gobin v. Globe Publishing Co.,

216 Kan. 223, 531 P.2d 76 (1975); McCall v. Courier-Journal & Louisville

Publishing Co., 623 S.W.2d 882 (Ky. 1981), cert. denied, 456 U.S. 975 (1982);

Wilson v. Capital City Press, 315 So. 2d 393 (La. Ct. App 1975); Jacron Sales

Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976); Stone v. Essex County

Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161 (1975); Madison v. Y unker,

180 Mont. 54, 589 P.2d 126 (1978); McCusker v. Valley 2 News, 121 N.H. 258,

428 A.2d 493, cert. denied, 454 U.S. 1017 (1981); Marchiondo v. Brown, 98

this modern age of electronic media, national distribution, and

the establishment of national newspapers, the Gertz decision,

allowing for a crazy-quilt of varying standards across the coun-

try, does not remain viable. As technology advances across

state lines so too must the protection of the Constitution.

A. What is Negligence

At this time, thirty-six states have considered and adopted

post-Gertz standards for recovery by private individuals. Of

these, four have adopted the standard of New York Times

malice, New York has adopted gross irresponsibility as a stan-

dard, and the thirty-one remaining, including Virginia, have

adopted simple negligence.

Although a majority of the states considering the issue have

adopted a negligence standard, a review of those states’ deci-

sions shows that no consensus exists as to what is negligence.

Excerpts from the language of various state court opinions

adopting a “negligence” standard amply demonstrate this

point.

Arizona, which adopted the Restatement (Second) of Torts

§580B as its standard, defines negligence as conduct which

creates unreasonable risk of harm—it is the amount of care a

reasonably prudent person would use under like circumstanes.

Peagler v. Phoenix Newspapers, Inc., 114 Ariz 309, 560 P.2d

1216 (1977). Other states have also adopted the reasonably

N.M. 394, 649 P.2d 462 (1982); Thomas H. Maloney & Sons, Inc. v. E.W.

Scripps Co., 43 Ohio App.2d 105, 334 N.E.2d 494 (1974), cert. denied, 423

U.S. 883 (1975); Martin v. Griffin Television, Inc., 549 P.2d 85 (Okla. 1976);

Wheeler v. Green, 236 Or. 99, 593 P.2d 777 (1979); DeCarvatho v. DaSilva, 414

A.2d 806 (R.I. 1980); Jones v. Sun Publishing Co., 278 S.C. 12, 292 S.E.2d

23, cert. denied, 459 U.S. 944 (1982); Memphis Publish ing Co. v. Nichols, 569

S.W.2d 412 (Tenn. 1978); Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809

(Tex. 1976), cert. denied, 429 U.S. 1123 (1977): Seegmiller v. KSL, Inc., 626

P.2d 968 (Utah 1981); Columbo v. Times-Argus Ass’n, Inc., 135 Vt. 454, 380

A.2d 80 (1977); Taskett v. King Broadcasting Co., 86 Wash.2d 439, 546 P.2d 81

(1976); Havalunch, Inc. v. Mazza, 294 S.E.2d 70 (W.Va. 1982); Denny v.

Mertz, 106 Wis.2d 626, 318 N.W.2d 141, cert. denied, 459 U.S. 883 (1982);

Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976).

prudent person definition of negligence. See, e.g., Kentucky,

McCall v. Courier-Journal and Louisville Times, 623 S.W.2d

882 (1981), cert. denied, 456 U.S. 975 (1982); Tennessee,

Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (1978);

West Virginia, Crump v. Beckley Newspapers, Inc., 320 S.E.

2d 70 (1984).

Several state courts have defined the standard of liability

called “negligence” as the lack of ordinary care. See, ¢.g.,

Troman v. Wood, 62 Ill.2d 184, 340 N.E. 2d 292 (1976); Dodrill

v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840

(1979). Other states, while adopting one of the above negli-

gence standards, have specifically refused to apply a profes-

sional malpractice standard. See, e.g., Kohn v. West Hawaii

Today, Inc. 656 P.2d 79 (Ha. 1982) (specifically rejecting Re-

statement (Second) of Torts §580B comment g (1977). See also,

Memphis Publishing Co. v. Nichols, supra.

Still other courts have ruled that negligence in defamation

actions by private individuals must be proven by expert testi-

mony. This requires that a media defendant's conduct is to be

judged by the standard of care exercised by a reasonably

prudent professional publisher or broadcaster in the news me-

dia industry. See, Gobin v. Globe Publishing Co., 216 Kan. 223,

233, 531 P.2d 76, 87 (1975); Martin v. Griffin Television, Inc.,

549 P.2d 85, 92 (Okla. 1976); Seegmiller v. KSL, Inc., 626 P.2d

968, 976 (Utah 1981). This standard is somewhat analogous toa

professional malpractice standard; “a departure from stan-

dards which exist or ought to exist as standards of professional

conduct in the news media industry.” Seegmiller at 976.

Finally, a handful of jurisdictions have refused to give the

media a clue as to what standard of fault they have adopted.

See, e.g., Jones v. Sun Publishing Co. Inc., 278 S.C. 12, 292

S. E.2d 23 (1982), cert. denied, 459 U.S. 944 (1983) (“some legal

measure of fault”); Madison v. Yunker, 180 Mont. 84, 589 P.2d

126 (1978) (defendant must be chargeable with fault).

The impact of varying negligence standards is judicially

unsettling, invites lawsuits and has a chilling effect upon the

news media. Editors and broadcasters whose news products

must traverse state lines, and in many cases are nationwide,

have no indication as to what state’s standards will control.

Many states have not defined what constitutes negligence;

others which have attempted to do so have done it with di-

ametrically different standards, and almost one-fourth of the

states have not yet addressed the issue of a standard for recov-

ery by a private individual. The First Amendment as applied to

the states through the Fourteenth Amendment mandates more

protection for freedom of speech and the press. In the after-

math of Gertz, this constitutional protection unravels.

The Gertz court set out to provide a definitive standard for

recovery by private individuals in defamation cases. What has

resulted is an array of fragmented standards. While scholars

may argue that the law set forth in Gertz is “definitive”, it

provides no reasonable guidance to those to whom it is applied.

The decision, and the state court decisions which follow it, fails

to afford those editors and publishers involved in interstate

commerce a clear statement of their rights and responsibilities

under the law.

B. The Reasonable-Care Standard is Elusive

In 1967, this Court had the foresight to observe:

A negligence test would place on the press the intolerable

burden of guessing how a jury might assess the reason-

ableness of steps taken by it to verify the accuracy of

every reference to a name, picture or portrait.

In this context, sanctions against either innocent or

negligent misstatement would present a grave hazard of

discouraging the press from exercising the constitutional

guarantees.

Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).

The confusion and uncertainty that necessarily surround a

standard as indefinite as negligence are in part due to the lack

of agreement as to what constitutes “reasonable” journalism,

10

Anderson, Libel and Press Self-Censorship, 53 Texas L. Rev.

422, 455-56 (1975). There is not nearly as much controversy

over what is “reasonable” in the context of, for example, oper-

ating an automobile.

The negligence standard as used in general tort cases

evolved under the common law to allow flexibility in approach-

ing a variety of different problems; “{uJniformity and certainty

of result are not only impossible but undesireable.” Anderson,

Libel and Press Self-Censorship, supra, 53 Tex. L.Rev. at 460

quoting Green, The Duty to Give Accurate Information 12

U.C.L.A. L.Rev. 464, 470-71 (1965). Such uncertainty is in-

compatible with the desire to leave crucial “breathing space” to

free speech and expression, however, because “the press might

choose to err on the side of supression when trying to predict

how a court would analyze a news story's . . . status.” Wald-

baum v. Fairchild Publications, Inc., 627 F.2d 1287, 1293

(D.C.Cir. 1980), cert. denied, 449 U.S. 989 (1980). As a result of

this timidity, important information might never reach the

public. See, e.g., Time, Inc. v. Hill, supra, 385 U.S. at 389;

Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d

450 (1975), cert. denied sub nom. Woestendiek v. Walker, 423

U.S. 1025 (1975). For these reasons, a “reasonable care” stan-

dard does not give a potential defamation defendant sufficient

guidance within which to perform the important function of

informing the public.

Several states have adopted the New York Times malice

standard to publications on matters of public or general con-

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

cert. denied, 423 U.S. 1025 (1975), the Colorado Supreme

Court studied the problems of a negligence standard and said

chat it adopted the “actual malice” standard:

‘See, Gay v. Williams, 486 F.Supp 12 (D. Alaska 1979); AAFCO Heating

and Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind. App.

671, 321 N.E.2d, 580 (Ind. Ct. App. 1974), cert. denied, 424 U.S. 913 (1976);

Peisner v. Detroit Free Press, 83 Mich. App. 153, 266 N.W.2d 693 (1976);

Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 5388 P.2d 450, cert.

denied, 423 U.S. 1025 (1975).

11

simply from [its] conclusion that a simple negligence rule

would cause such a chilling effect upon the news media

that it would print insufficient facts in order to protect

itself against libel actions and that this insufficiency would

be more harmful to the public interest than the possibility

of lack of adequate compensation to a defamation injured

private individual. 188 Colo. at 99, 538 P.2d at 458.

C. Empirical Data Shows That the Press Is Especially

Vulnerable to Jury Prejudice

This Court decided the New York Times case during a period

of racial unrest and turmoil in the South. Civil rights workers

were murdered for encouraging blacks to register and vote,

and it was a time when the free press was being threatened by

the political powers. This Court felt its obligation to protect the

press from those threats existing at the time—the ever increas-

ing libel litigation by whites who held power in the South. Now

again the press is under attack by those who do not like what is

being reported, or in general, are unhappy with what they

perceive as a “bias” or predisposition by the press to a par-

ticular philosophy or social interest.

Never has it been more important for this Court to reaffirm

its commitment to a free press. Not since Colonial times has

the press faced a greater threat. Then the source of the threat

was the British Crown. Today it is juries that, with increasing

frequency, are rendering verdicts against the press in stagger-

ing amounts “bearing no necessary relationto . . . actual harm

caused.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).

A 1980 study of all defamation cases reported between Janu-

ary 1976 and June 1979 showed no libel verdicts against the

press in excess of $1,000,000. See Franklin, Winners and

Losers and Why: A Study of Defamation Litigation, 1980

American Bar Foundation Research J. 457, 473 (1980). Just one

year later, in 1981, the same author, in a more extensive study

focusing exclusively on libel cases against the press, concluded

that “(dJollars may soon be flying in defamation cases.” Frank-

lin, Suing the Media For Libel: A Litigation Study, 1981 Amer-

12

ican Bar Foundation Research J. 795, 797 (1981). An update of

the 1981 Franklin Study, published in 1982, confirmed Pro-

fessor Franklin’s prediction. In the intervening year, there

were nine verdicts in excess of $1,000,000. See, Defamation

Trials and Damage Awards—U pdating the Franklin Studies,

4 Libel Defense Resource Center Bulletin 2 (August 15, 1982).

Moreover, while only seventeen percent of the awards in the

1981 Franklin Study exceeded $250,000, forty-five percent of

the awards in the one-year period between that study and the

update were larger than $250,000, Jd. at 3. This disturbing

trend is accelerating. Of the eight jury verdicts against the

press in the spring of 1983, seven exceeded $1,000,000. 7 Libel

Defense Resource Center Bulletin 58 (July 15, 1983.)

While increasingly numerous suits with their huge verdicts

and substantial defense costs threaten all members. of the

press, they particularly threaten smaller members, such as

petitioner in this case. A $150,000 verdict now reduced to

$50,000 by action of the Virginia Supreme Court, may not seem

particularly burdensome when rendered against large national

newspapers. Such an amount becomes crushing, however,

when rendered against a paper the size of the Alexandria Port

Packet with a net worth of only $21,000. The press is keenly

aware of the saga of a small newspaper in Illinois, The Alton

Telegraph, which was forced to file a Chapter 11 bankruptcy

petition as a result of a $9,200,000 verdict against it. Green v.

Alton Telegraph Printing Co., 107 Ill. App. 3d 755, 438 N.E.2d

203 (Ill. Ct. App. 1982).

It is well known that press ownership has become concen-

trated among large corporate interests. As this marketplace of

ideas diminishes, so too does the quality, quantity and variety

of information available to the public. Such a contraction is

totally inconsistent with the values placed on free speech, “a

special kind of activity in our society.” Kalven, The Reasonable

Man and the First Amendment, 1967 Sup.Ct. Rev. 267, 301

(1967).

13

D. The Technology Which Makes Instantaneous Com-

munications Possible Makes Negligence An Op-

pressive Standard for Recovery

A review of the final results in those states adopting the

negligence standard shows that the standard is not practical in

this modern society.

Modern newsgathering techniques increasingly involve in-

stantaneous communications. Modern technology has com-

pressed the time allowed to disseminate the news. Deadline

pressures are constant in any newsroom, but with the tech-

nology available now to make news delivery virtually in-

stantaneous, the deadline pressure has heightened.

Against this atmosphere, and against fierce competition, the

reporter and editor must make fast decisions about a story's

importance, about conflicting information from different

sources, and about the reliability of those sources. The editor

does not have the luxury of holding a story back until it has

been verified beyond cavil. These pressures make errors inev-

itable. To judge these inadvertent errors by a negligence stan-

dard is an unreasonable restraint upon a free press.

An analogy can be made to the imposition of a negligence

standard upon the trial judge, who is forced, as are newsroom

personnel, to make judgments under instantaneous time pres-

sures. Of course, every judge will make errors under these

constraints; thus the “harmless error” rule. Appellate courts

realize that they operate with the luxury of hindsight not

available to the trial judge.

This same hindsight will guide jury deliberations if negli-

gence is continued to be applied to the media. Any error a

newspaper makes could be said to be negligent in that a news-

paper is not required to print anything at all. Holding the news

media to an unpredictable negligence standard based on

hindsight and upon no requirement of professional journalistic

expertise or standards is not the protection envisioned by the

framers of the Constitution when enacting the First

Amendment.

14

III. Alternative Standards Are Available Which Meet The

Test Of Constitutionality

A. The Majority Opinion in Gertz is Illusory and A

National Constitutional Standard is Required

Justice Blackman provided the fifth vote in the Gertz opin-

ion, not because he believed it was logical, but only to provide a

definitive statement by the Court on defamation. In describing

the decision he had joined, he conceded that the Rosenbloom

standard was his choice and was more logical: “As my joinder in

Rosenbloom’s plurality opinion would intimate, I sense some

illogic in [the majority's decision]” 418 U.S. at 353. Justice

Blackman made it clear that he voted with the other four solely

to create a majority. “If my vote were not needed to create a

majority, I would adhere to my prior view [Rosenbloom]. A

definitive ruling, however, is paramount.” 418 U.S. at 354.

Further, in the Rosenbloom decision five justices agreed

that, at a minimum, New York Times malice is the proper

standard for media reports about private individuals in matters

of public concern. In Rosenbloom, Justices Brennan, Black-

man and Burger joined in the plurality opinion in favor of an

actual malice standard. Justice Black concurred in the decision

while maintaining that the First Amendment provides the

press with an absolute privilege against defamation suits. 403

U.S. at 57. Although Justice Douglas did not take part in the

decision, he agreed with Justice Black. See, e.g., Gertz ».

Welch, 418 U.S. at 356.

Inherent in the argument for the adoption of a single uniform

constitutional standard is that allowing the individual states to

adopt varying standards restricts the free flow of news in

interstate commerce. Art. I. § 8, U.S. Constitution. In effect,

any publication which is distributed nationally will be subject

to the least common denominator: a simple negligence stan-

dard. This renders the origin stat2’s standard a nullity, as the

plaintiff can simply choose to sue where his burden of proof will

be easiest to satisfy.

15

The confusion and uncertainty caused by varying state stan-

dards, coupled with the greater uncertainty of negligence and

the wider interstate distribution and dissemination of news,

requires that this Court establish a national standard.

B. This Court Should Adopt A Standard of Gross Irre-

sponsibility to Be Used in All States Courts for

Recovery by Private Individuals in Defamation

Cases Against the News Media

New York has adopted a unique standard. In Chapadeau v.

Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d

61, 341 N.E.2d 569 (1975), the New York Court of Appeals ina

scholarly and well-reasoned opinion held that:

where the content of the article is arguably within the

sphere of legitimate public concern, which is reasonably

related to matters warranting public exposition, the party

defamed may recover; [upon establishing] by a prepon-

derance of the evidence that the publisher acted in a

grossly irresponsible manner without due consideration

for the standards of information gathering and dissemina-

tion ordinarily folowed by responsible parties. (emphasis

added) Jd. 38 N.Y.2d at 199, 379 N.Y.S.2d at 64.

New York has recently extended the protection of C hap-

adeau by allowing the media to determine what editorial con-

tent is of legitimate public interest and concern. See, Gaeta v.

New York News, Inc. 477 N.Y.S.2d 82, 465 N.E.2d 802, 62

N.Y.2d 340 (1984).

The court concluded that:

while not conclusive, a commercial enterprise's allocation

of its resources to specific matters and its editorial deter-

mination of what is newsworthy, may’ be powerful evi-

dence of the hold these subjects have on the public's atten-

tion. Jd.

The Chapadeau standard satisfies the two competing inter-

ests present in every defamation case: the interest of the indi-

vidual in protecting his reputation and the constitutional free-

16

dom of speech and press. This is a far superior standard than

simple negligence, for it requires a greater degree of proof, and

eliminates much of the subjectivity which can be exercised by a

jury under the “reasonable man” standard of simple negli-

gence. It also requires proof by the plantiff of the “standards of

information gathering and dissemination ordinarily followed by

responsible parties,” thereby ensuring that a defendant will

not be subject to an exhorbitant judgment simply based upon

the opinion of lay jurors regarding the steps taken by a working

press. In medical malpractice cases, doctors are held to the

standards required of doctors, and are liable if they violate

those standards. The same is true of lawyers, engineers and

other professionals. There is no compelling reason why profes-

sional journalists should not be required to be judged by the

standards of their profession, rather than by the opinion of lay

jurors with no experience in or knowledge of the workings of

the press.

Adoption of the Chapadeau standard would provide this

protection to the press, while on balance it would not place on

the private individual plaintiff the requirement of proof to the

degree of New York Times malice. Adoption of Chapadeau as a

national standard to be applied in all defamation cases brought

by private parties against media defendants, would eliminate

the confusion and lack of certainty which has prevailed in this

area of the law in the years following Gertz.

CONCLUSION

The main purpose of Justice Blackman's joinder with the

majority in Gertz was to finally resolve a serious problem for

the courts and the press. However, the experience of ti > ten

years since Gertz has shown that rather than resolving a diffi-

cult legal issue, the Gertz decision has spawned widely diver-

gent standards, greater uncertainty among lawyers, judg. ;

and journalists, more confusion, and more litigation. This

reaches the level of absurdity where, as in this case, a small

weekly community newspaper faces extinction because a jury

of seven laymen felt the paper was “negligent”, in the lay sense,

17

in publishing an article about child abuse. This result occurred

even though neither plaintiffs’ nor their child's name was pub-

lished or even known to the reporter and publisher, and where

the article contained no reference to any individual either by

name or description, as suspect in the child’s death. This case is

a vivid example of the abuses which occur where a jury is

allowed to randomly apply a subjective personal standard—

negligence—to judge the professional activities of the working

press. The Constitution demands that no impediment be raised

to control, or curtail, freedom of speech for all. Certainly, the

protection of our First Amendment freedoms is too important

to be left to highly individual and variant decisions of the

states. As this Court has done for public officials, public figures

and in the areas of punitive damages in defamation cases, it

must adopt a uniform national standard to be applied, at the

least, to all media defendants in defamation cases brought by

private individuals.

Petitioner urges this Court to grant certiorari to review

what has occurred in the various states in the ten years since

Gertz, and upon this determination, to overrule Gertz and to

adopt a national constitutional standard of gross irrespon-

sibility for recovery of damages for defamation in suits brought

by private individuals against the media.

For these reasons, Petitioner respectfully prays that a Writ

of Certiorari issue to review the judgments entered herein by

the Supreme Court of Virginia.

Respectfully submitted,

HARVEY B. COHEN

JOANNE F. ALPER

COHEN, GETTINGS, ALPER & DUNHAM

1400 North Uhle Street

Suite 500

Arlington, Virginia 22201

(703) 525-2260

APPENDIX

la

IN THE

SUPREME COURT OF VIRGINIA

PRESENT: Carrico, C.J., Cochran, Poff, Compton and Step-

henson, JJ., and Harrison and Gordon, Retired

Justices

THE GAZzETTE, INC.

V.

JAMES WILLIAM HARRIS, et al.

Record No. 830758

FROM THE CIRCUIT CouRT OF GOOCHLAND COUNTY

F. Ward Harkrader, Jr., Judge

CHARLOTTESVILLE NEWSPAPERS, INC.

V.

DEBRA C. MATTHEWS

Record No. 830526

FROM THE CIRCUIT COURT OF THE

CITY OF CHARLOTTESVILLE

Herbert A. Pickford, Judge

PORT PACKET CORPORATION

V.

E. GREY LEWIS, et al.

Record No. 830651

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Albert H. Grenadier, Judge

2a

PRESENT: Carrico, C.J., Cochran, Poff, Compton and Step-

henson, JJ.. and Harman, Senior Justice, and

Gordon, Retired Justice

JAMES N. FLEMING

V.

W. BEDFORD Moore, III

Record No. 831446

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

F. Ward Harkrader, Jr., Judge

OPINION BY JUSTICE A. CHRISTIAN COMPTON

February 1, 1985

In one opinion, we decide four libel appeals. The plaintiffs

are private individuals, not public officials or public figures.

Three of the appeals are based on suits against members of the

print media. In the fourth appeal, the defendant is a private

person. Judgments for compensatory damages have been en-

tered against the defendant in each case. In two cases, the

judgments include awards of punitive damages.

The dominant issue to be decided in each case is what stan-

dard of liability should govern an award of compensatory

damages in a libel action in Virginia, given the developments in

federal constitutional law on the subject of libel beginning with

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

judication of this central question will spawn subsidiary issues

common to all the suits. In addition, the awards of punitive

damages generate issues common to those two cases. The

common questions of law will be analyzed in the first sections of

this opinion and, in succeeding sections, the issues peculiar to a

specific case will be adjudicated in the section of the opinion

devoted to such case.

I. Dominant Issue

A. Virginia Background

In Virginia, as in other states, the law of defamation histor-

ically has protected a basic interest. The individual’ right to

3a

personal security includes his uninterrupted entitlement to

enjoyment of his reputation. Fuller v. Edwards, 180 Va. 191,

197, 22 S.E.2d 26, 29 (1942). “Society has a pervasive and

strong interest in preventing and redressing attacks upon rep-

utation.” Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

- Upon the general framework of defamation law in Virginia

prior to 1964, the beginning of a period when major aspects of

libel law became federalized, the defamed private citizen had to

prove only a false publication that included words which were

either actionable per se according to certain fixed principles,

or, if not defamatory per se, words which resulted in special

damages to the party defamed. See M. Rosenberg & Sons. v.

Craft, 182 Va. 512, 518, 29 S.E.2d 375, 378 (1944). Upon such

publication,' malice was inferred and damage to reputation was

presumed. See Note, Defamation in Virginia—A Merger of

Libel and Slander, 47 Va. L. Rev. 1116, 1117 (1961). And, unless

the otherwise libelous statement was privileged or the defen-

dant could establish its truth, Rosenberg v. Mason, 157 Va.

215, 228, 160 S.E. 190, 195 (1931), the publisher was liable for

compensatory damages. Upon proof of common-law actual or

express malice, the plaintiff was entitled to an award of punitive

damages. James v. Haymes, 160 Va. 253, 263, 168 S.E. 333, 337

(1933).

Commencing in 1964, however, a series of decisions of the

United States Supreme Court caused significant changes in the

law of libel.

B. Pertinent Supreme Court Decisions

In New York Times Co. v. Sullivan, the Supreme Court

determined for the first time the extent to which the constitu-

tional protections of speech and press limit a state’s power to

award damages in a libel action brought by a public official

against critics of his official conduct. 376 U.S. at 256. The Court

‘No publication is required in an action brought under the Virginia statute

’ of insulting words, Code § 8.01-45. Davis v. Heflin, 130 Va. 169, 107 S.E. 673

(1921).

4a

decided that the rules of law applied by the Alabama state

courts were constitutionally deficient for failure to provide

safeguards for freedom of speech and of the press that are

required by the First and Fourteenth Amendments in a libel

action brought by such a public official. Jd. at 264. The Court

held that “(t]he constitutional guarantees requires ... a

federal rule that prohibits a public official from recovering

damages for a defamatory falsehood relating to his official

conduct unless he proves that the statement was made with

‘actual malice’-—that is, with knowledge that it was false or

with reckless disregard of whether it was false or not.” Jd. at

279-80. In Garrison v. Louisiana, 379 U.S. 64 (1964), the Court

applied the New York Times “actual malice” standard to state

criminal libel statutes that imposed sanctions for criticism of

official conduct of public officials.

In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1966), the

Court held “that a ‘public figure’ who is not a public official may

. . . recover [compensatory and punitive] damages for a defam-

atory falsehood whose substance makes substantial danger to

reputation apparent, on a showing of highly unreasonable con-

duct constituting an extreme departure from the standards of

investigation and reporting ordinarily adhered to by responsi-

ble publishers.” Jd. at 155. In holding that the standard had

been met by the plaintiff in Butts, but not in the companion

case of Associated Press v. Walker (decided in the same opin-

ion), the Court rejected the defendant’s contention that it could

not be subjected to an assessment of punitive damages. Justice

Harlan, writing for the majority, stated: “Where a publisher's

departure from standards of press responsibility is severe

enough to strip from him the constitutional protection our

decision acknowledges, we think it entirely proper for the

State to act not only for the protection of the individual injured

but to safeguard all those similarly situated against like

abuse.” Jd. at 161.

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

identified evidence that may be employed to establish New

York Times “actual malice.” The majority, through Justice

5a

White, noted that “evidence of either deliberate falsification or

reckless publication ‘despite the publisher’s awareness of prob-

able falsity’ was essential to recovery by public officials in

defamation actions.” Jd. at 731. The Court then listed certain

acts which show the “recklessness” aspect of “actual malice”:

intentional fabrication by a defendant of facts or communica-

tions; basing an article wholly upon an unverified anonymous

telephone call; printing allegations so inherently improbable

that only a reckless person would put them in circulation; and

publication of an article despite obvious reasons to doubt the

truth and veracity of the informant upon whom the article

relies for accuracy. Jd. at 732. The Court said that failure to

investigate will not in itself establish bad faith, id. at 733, but

stated that a “defendant in a defamation action brought by a

public official cannot . . . automatically insure a favorable ver-

dict by testifying that he published with a belief that the

statements were true.” Jd. at 732.

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

plurality of the Court, through Justice Brennan, extended the

New York Times “actual malice” standard to publications relat-

ing to all matters of public or general concern, irrespective of

the public or private nature of the plaintiff. In rejecting the

suggested distinction between public officials and public fig-

ures on the one hand and private individuals on the other,

Justice Brennan focused instead on society's interest in learn-

ing about issues of public or general concern. Thus, under

Rosenbloom, once a trial court determined that the alleged

libel involved a matter of public or general concern, the fact

finder should then consider whether New York Times malice

had been proved, paying no heed to the plaintiff’s status.

Three years later, in Gertz v. Robert Welch, Inc., 418 U.S.

323 (1974), the Supreme Court expressly repudiated its holding

in Rosenbloom. One commentator states that the Gertz major-

ity sensed “the Rosenbloom plurality opinion had nearly de-

stroyed the common law of defamation. .. .” J. Eaton, The

American Law of Defamation Through Gertz v. Robert Welch,

Inc., and Beyond: An Analytical Primer, 61 Va.L. Rev. 1349,

1409 (1975).

6a

In Gertz, a Chicago policeman had shot and killed a youth.

Gertz, a reputable attorney, was employed to represent the

youth’s family in civil litigation against the officer. The defen-

da t published, in its monthly magazine giving the views of the

Jc Birch Society, false statements about Gertz. The publica-

t implied that Gertz had a criminal record and labeled him a

“Leninist” and “Communist-fronter.”

Justice Powell, writing for the majority, articulated several

important holdings defining “the proper accommodation be-

tween the law of defamation and the freedoms of speech and

press protected by the First Amendment.” 418 U.S. at 325.

First, the Court reaffirmed its rulings in New York Times and

Butts stating that public officials and public figures may recover

for defamation only upon clear and convincing proof of New

York Times malice. Second, the Court made clear that all

persons, public or private, may recover presumed or punitive

damages only upon clear and convincing proof of New York

Times malice.

Third, and most important for purposes of the cases at bar,

the Court held “that, so long as they do not impose liability

without fault, the States may define for themselves the appro-

priate standard of liability for a publisher or broadcaster of

defamatory falsehood injurious to a private individual.” Jd. at

347. Justice Powell stated that this approach establishes an

equitable boundary between the competing interests involved.

“It recognizes the strength of the legitimate state interest in

compensating private individuals for wrongful injury to repu-

tation, yet shields the press and broadcast media from the

rigors of strict liability for defamation.” Jd. at 348.

The Court, however, expressly limited the applicability of a

fault standard. Such limitation has not been sufficiently

emphasized in many of the decisions and comments based on

Gertz, but we think recognition of the limitation is essential to

an accurate analysis of the decision. The Court said, quoting

from Butts, that applicability of a fault standard must be re-

stricted to circumstances where “the substance of the defama-

7a

tory statement ‘makes substantial danger to reputation appar-

ent.” Jd. Continuing, the Court stated: “Our inquiry would

involve considerations somewhat different from those dis-

cussed above if a State purported to condition civil liability ona

factual misstatement whose content did not warn a reasonably

prudent editor or broadcaster of its defamatory potential.” /d.;

Time, Inc. v. Firestone, 424 U.S. 448, 464-65 (1976) (Powell, J.,

concurring).

In addition, the Court said that the State’s interest in com-

pensating private individuals for injury to reputation extends

no further than compensation for actual injury, which may

include impairment of reputation and standing in the communi-

ty, personal humiliation, mental anguish and suffering, as well

as out-of-pocket loss. Gertz, 418 U.S. at 350. Finally, the Court

rejected the Rosenbloom plurality’s requirement that judges

must consider whether publications adress issues of “general

or public interest,” stating that such a test “for determining the

applicability of the New York Times standard to private defa-

mation actions inadequately serves both of the competing val-

ues at stake.” Jd. at 346.

In Herbert v. Lando, 441 U.S. 153 (1979), the Supreme Court

rejected a plea “that the balance struck in New York Times

should now be modified to provide further protections for the

press when sued for circulating erroneous information damag-

ing to individual reputation.” Jd. at 169. The Court, through

Justice White, noted that the 1964 New York Times decision

which “was widely perceived as essentially protective of press

freedoms,” has been repeatedly affirmed in succeeding cases.

Id. The Court also pointed out, however, citing Firestone and

Gertz, that “the Court has reiterated its conviction—reflected

in the laws of defamation of all of the States—that the individu-

al’s interest in his reputation is also a basic concern.” Jd.

C. Pertinent Virginia Decisions Since New York Times

Sanders v. Times-World Corp., 213 Va. 369, 192 S.E.2d 754

(1972), was decided after New York Times and Rosenbloom,

but before Gertz. There, for the first time, we applied the New

8a

York Times malice standard to a libel case involving a private

person arising from matters of “public or general concern,” as

required by Rosenbloom. “In Rosenbloom and Sanders, the

relevant test was not the status of the plaintiff involved but

rather the events which were the subject of the publication.”

Newspaper Publishing Corp. v. Burke, 216 Va. 800, 803, 224

S.E.2d 132, 135 (1976). In Sanders, we cited three earlier

Virginia cases, from 1961, 1967, and 1970 respectively, for the

proposition that, where defendants’ statements were

qualifiedly privileged, the plaintiff bears the burden to estab-

lish actual malice. The Sanders decision was based, nev-

ertheless, on the federal standards of New York Times and

Rosenbloom.

Newspaper Publishing Corp. v. Burke, supra, was the first

libel case we decided after Gertz. Analyzing Gertz, we held that

the trial court erroneously instructed the jury, in violation of

the Gertz admonition, that the newspaper defendant could be

adjudged liable without fault te the private plaintiffs. Addi-

tionally, the Court determined that the trial court incorrectly

told the jury that an award of punitive damages could be

premised upon a finding of common-law malice rather than

New York Times “actual malice.”” Furthermore, while recog-

nizing that we could define our own standard for recovery of

actual, compensatory damages as authorized by Gertz, we

chose not to formulate a Virginia standard in that case. We

noted that the jury did not award actual damages, only punitive

damages, and termed the task of fixing a Gertz-approved stan-

dard “unnecessary.” 216 Va. at 804, 224 S.E.2d at 136.

In Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632 (1981)

(hereinafter Fleming 1), a suit against a non-media defendant

and the precursor to the instant case of the same name, we

decided that the publication was not defamatory per se; that

the plaintiff, a private individual, did not forfeit his private

For a definition of common-law malice, see also Preston v. Land, 220 Va.

118, 120-21, 255 S.E.2d 509, 511 (1979), a post-Gertz case of slander among

private individuals in which the federal libel standards were not in issue.

|

9a

status by speaking at public hearings involving land use pro-

posals; that because the plaintiff Moore was not a public figure,

he was not required to show New York Times malice as a

prerequisite to recovery of compensatory damages, id. at 892,

275 S.E.2d at 637; that punitive damages may not be awarded

without a tandem award of compensatory damages, unless the

libel involved was “actionable per se,” id. at 893-94, 275 S.E.2d

at 638; and, that in libel actions not based upon per se defama-

tion where New York Times malice is not shown, compensatory

damages must be limited to actual injuries sustained. We de-

cided, however, that actual injury was not confined to pecuni-

ary loss but included such elements as damage to reputation

and standing in the community, embarrassment, humiliation,

and menta!: suffering. We modified language contained in

Shupe v. Rose’s Stores, 213 Va. 374, 192 S.E.2d 766 (1972), to

the extent that Shupe may have indicated that emotional upset

and embarrassment cannot constitute “special damages.” 221

Va. at 894, 275 S.E.2d at 639.

In Fleming I, we further decided that Gertz did not control

because the Gertz rule was not explicitly extended to non-

media defendants. We stated, nevertheless, that we share the

Gertz concern with the assessment by juries of punitive

damages “‘in wholly unpredictable amounts bearing no neces-

sary relation to the actual harm caused.’” Jd. at 893, 275 S.E.2d

at 638, quoting Gertz, 418 U.S. at 350. Thus, we held in F'lem-

ing I, a suit by a private individual against a non-media defen-

dant, that a recovery of punitive damages must be based upon

the New York Times actual malice standard that is applicable to

media defendants, that is, clear and convincing proof of knowl-

edge of falsity or reckless disregard for the truth.

D. The Virginia Standard of Fault for Compensatory

Damages

The parameters within which we must fix the Virginia stan-

dard as a matter of state law have been set forth in our prior

discussion of Gertz. The plaintiffs in the present appeals argue

for a negligence standard. Generally, the defendants assert

10a

that a defamed private individual should be required to estab-

lish New York Times malice to recover actual, compensatory

damages in this State. In a brief amicus curiae filed in one of

the media appeals, the Virginia Press Association, Inc., argues

that “a negligence standard is no standard at all” and that such

a requirement “simply does not provide the protection needed

to ensure a free and open press.” Asserting that the matters

involved in these four appeals involve issues of public concern,

the defendants contend that our pre-Gertz Sanders decision is

controlling and that liability for the alleged defamations re-

quires proof of New York Times “actual malice.” We do not

agree.

The Supreme Court in Gertz left little doubt that it expected

many of the states to adopt a negligence standard. Justice

Powell, while noting that allowance of presumed damages

would unnecessarily exacerbate the danger of media self-cen-

sorship, stated that the policy considerations concerning

punitive-damage awards are “wholly irrelevant to the state

interest that justifies a negligence standard for private defama-

tion actions.” 418 U.S. at 350. Justice Blackmun, concurring,

flatly said “that the Court now conditions a libel action by a

private person upon a showing of negligence, as contrasted

with a showing of willful or reckless disregard. . . .” Jd. at 353.

Chief Justice Burger, dissenting, said that the majority “intro-

duces the concept that the media will be liable for negligence in

publishing the defamatory statements with respect to [ordi-

nary private citizens].” /d. at 355. Justice Brennan, dissenting,

forecast adoption of “a reasonable-care standard” by many

states as the “probable result of today’s decision.” Jd. at 366.

Justice White, dissenting and deploring the “additional burden

on the plaintiff of proving negligence or other fault,” stated that

“{uJnder the new rule the plaintiff can lose, not because the

statement is true, but because it was not negligently made.”

Id. at 376.

Certainly, despite the Supreme Court's forecasts, we prop-

erly may choose to adopt as a matter of state law a stricter

standard than ordinary negligence. We will not do so. Indeed,

\

lla

while we did not explicitly fix the standard in Fleming I, we

implicitly indicated that a level of liability less than New York

Times malice was all that was required. We said: “Therefore,

{the plaintiff] was not required to show, as a prerequisite to

recovery of compensatory damages, that Fleming acted with

malice that met the New York Times standard.” 221 Va. at 892,

275 S.E.2d at 638.

We hold, therefore, that in an action brought by a private

individual to recover actual, compensatory damages for a de-

famatory publication, the plaintiff may recover upon proof by a

preponderance of the evidence that the publication was false,

and that the defendant either knew it to be false, or believing it

to be true, lacked reasonable grounds for such belief, or acted

negligently in failing to ascertain the facts on which the pub-

lication was based. Under this standard, truth no longer is an

affirmative defense to be established by the defendant. In-

stead, the plaintiff must prove falsity, because he is required to

establish negligence with respect to such falsity. In addition,

we hold that such liability may be based upon negligence,

whether or not the publication in question relates to a matter of

public or general concern.

The application of this negligence standard is »xpressly lim-

ited, however, to circumstances where the defamatory state-

ment makes substantial danger to reputation apparent. The

trial judge shall make such determination as a matter of law. If,

on the other hand, no substantial danger to reputation is appar-

ent from the statement in issue, New York Times malice must

be established to recover compensatory damages.

Nothing in the public policy of the Commonwealth or in our

prior decisions requires adoption of a standard higher than one

of ordinary negligence. The Constitution of Virginia does not

mandate embracement of a more stringent standard. Article I,

§ 12 provides, in part, “that any citizen may freely speak,

write, and publish his sentiments on all subjects, being respon-

sible for the abuse of that right . . . .” That provision recog-

nizes the balance to be struck between the right of free expres-

12a

sion enjoyed by the individual and the press on the one hand

and the right of defamed individuals to hold the speakers

“responsible” for damage to reputation on the other. See I A.

Howard, Commentaries on the Constitution of Virginia, at

249-59 (1974). And, as we already have said, our Sanders

decision is not controlling, because it was decided before Gertz

and was based on Rosenbloom, nor are any of our other cases.

Moreover, we think that a negligence test strikes a proper

balance between the rights of the news media and the rights of

private individuals. As noted in Gertz, the private individual is

more vulnerable to injury to reputation inflicted by defamatory

falsehood than are public officials and public figures who or-

dinarily “enjoy significantly greater access to channels of effec-

tive communication and hence have a more realistic oppor-

tunity to counteract false statements than private individuals

normally enjoy.” Gertz, 418 U.S. at 344. Even though “the

truth rarely catches up with the lie,” id. n.9, the opportunity

for rebuttal is more readily available to the public person.

Consequently, the state interest in protecting the private indi-

vidual is greater than in the case of a non-private person.

In addition, we believe that the negligence standard will not

result in self-censorship, as the media defendants argue, and

that the duty of reasonable care is an acceptable burden for the

press to bear. After all, the concept of negligence is fundamen-

tal to the imposition of tort liability in Virginia in the great

majority of legal relationships that are created daily, and we

have not been convinced that the publisher of the defamatory

falsehood should be elevated to a preferred status for the

assessment of liability for the harm caused by such a tort.

Neither the intentional lie nor the negligent error substantially

advances society's interest in uninhibited and robust debate.

See id. at 340.

Also, the limitations we have placed on the rule will serve to

insulate the publisher from liability based on a publication the

content of which does not warn a reasonably prudent editor or

broadcaster of its defamatory potential. In such a case, New

York Times malice must be established in order to recover

13a

compensatory damages. The mere negligent error or the care-

less misstatement of fact which, on its face, does not appear to

be defamatory will not result in liability for compensatory

damages being imposed on the publisher.

Finally, the standard we adopt today is in accord with the

rule embraced by a substantial number of the states that have

decided the issue since Gertz. See E. Collins and J. Drushal,

The Reaction of the State Courts to Gertz v. Robert Welch, Inc.,

28 Case W. Res. L. Rev. 306 (1978). To date, at least 30 states and

the District of Columbia have adopted a negligence standard in

media cases involving private persons, either after discussing

the issue or without discussing the question.’ Also, two federal

*The cases that discuss the issue are: Peagler v. Phoenix Newspapers,

Inc., 114 Ariz. 309, 560 P.2d 1216 (1977); Dodrill v. Arkansas Democrat Co.,

265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076 (1980);

Phillips v. Evening Star Newspaper Co., 424 A.2d 78 (D.C. 1980), cert.

denied, 451 U.S. 989 (1981); Miami Herald Publishing Co. v. Ane, 423 So.2d

376 (Fla. App. 1981); Cahill v. Hawaiian Paradise Park Corp., 56 Hawaii

522, 543 P.2d 1356 (1975); Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292

(1975); Gobin v. Globe Publishing Co., 216 Kan. 223, 531 P.2d 76 (1975);

McCall v. Courier-Journal & Louisville Publishing Co., 623 S.W.2d 882 (Ky.

1981), cert. denied, 456 U.S. 975 (1982); Wilson v. Capital City Press, 315

So.2d 393 (La. Ct. App. 1975); Jacron Sales Co. v. Sindorf, 276 Md. 580, 350

A.2d 688 (1976); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330

N.E.2d 161 (1975); Madison v. Yunker, 180 Mont. 54, 589 P.2d 126 (1978);

McC usker v. Valley News, 121 N.H. 258, 428 A.2d 493, cert. denied, 454 U.S.

1017 (1981); Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462 (1982); Thomas

H. Maloney & Sons, Inc. v. E. W. Scripps Co., 43 Ohio App.2d 105, 334

N.E.2d 494 (1974); cert. denied, 423 U.S. 883 (1975); Martin v. Griffin

Television, Inc., 549 P.2d 85 (Okla. 1976); Jones v. Sun Publishing Co., 278

S.C. 12, 292 S.E.2d 23, cert. denied, 459 U.S. 944 (1982); Memphis Publish-

ing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978); Foster v. Laredo News-

papers, Inc., 541 S.W.2d 809 (Tex. 1976), cert. denied, 429 U.S. 1123 (1977);

Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981); Taskett v. King Broadcast-

ing Co., 86 Wash.2d 439, 546 P.2d 81 (1976); Havalunch, Inc., v. Mazza, 294

S.E.2d 70 (W.Va. 1982); Denny v. Mertz, 106 Wis.2d 636, 318 N.W.2d 141,

cert. denied, 459 U.S. 883 (1982).

The cases that do nut discuss the issue are: Browning v. Birmingham

News, 348 So.2d 455 (Ala. 1977); Corbett v. Register Publishing Co., 33 Conn.

Supp. 4, 356 A.2d 472 (1975); Savannah News-Press Div. v. Whetsell, 149 Ga.

l4a

courts interpreting Virginia law after Gertz anticipated that we

would adopt a negligence standard. See General Products Co.

v. Meredith Corp., 526 F. Supp. 546 (E.D. Va. 1981); Mills v.

Kingsport Times-News, 475 F. Supp. 1005 (W.D. Va. 1979).

And the drafters of the Restatement responded to Gertz by

adopting a negligence standard for the media defendant who

defames a private person or a public person in a matter unre-

lated to his public capacity. Restatement (Second) of Torts

§ 580B (c) (1977). See generally R. Smolla, Let the Author

Beware: The Rejuvenation of the American Law of Libel, 132

U.Pa.L. Rev. 1 (1983).

II. Subsidiary Issues

Because one of the present appeals involves a non-media

defendant, the question arises whether the negligence stan-

dard is limited to media defendants, in which case the non-

media defendant would remain subject to the rule of strict

liability. Gertz involved a media defendant and the Court's

opinion did not address the instant issue. We hold, however, as

a matter of state law that the negligence standard should be

applicable to media and non-media defendants alike.

The logic of such a conslusion is compelling. It would indeed

be bizarre to hold as a matter of tort law that individuals are

liable without fault while the media is liable only upon a show-

ing of negligence. See Jacron Sales Co. v. Sindorf, 276 Md. 580,

350 A.2d 688, 695 (1976). The media, being composed of profes-

sionals and capable of causing much greater damage because of

wider distribution of the communication, are more cognizant of

the risk of liability and more likely to take appropriate precau-

tions. The private-individual defamer, however, whose utter-

ance is likely to cause less harm, ordinarily will not realize the

potential liability resulting from his communication and will fail

App. 233, 254 S.E.2d 151 (1979); Bandelin v. Pietsch, 98 Idaho 337, 563 P.2d

395, cert. denied, 434 U.S. 891 (1977); Wheeler v. Green, 286 Or. 99, 593 P.2d

777 (1979); DeCarvlaho v. DaSilva, 414 A.2d 806 (R.I. 1980); Colombo v.

Times-Argus Ass'n, Inc., 135 Vt. 454, 380 A.2d 80 (1977); Adams v. Frontier

Broadcasting Co., 555 P.2d 556 (Wyo. 1976).

l5a

to take similar precautions. See Restatement (Second) of Torts

§ 580B, comment e (1977). Contra Denny v. Mertz, 106 Wis. 2d

636, 659-61, 318 N.W.2d 141. 152-53 (1982). Neither policy nor

reason supports different treatment of the respective types of

defendants. See Jacron Sales Co., 276 Md. at 593-94, 350 A.2d

at 696.

Furthermore, in Fleming I, we applied the constitutional

privilege of New York Times, Butts, and Gertz to a non-media

defendant where recovery of punitive damages was sought. We

now take the next logical, consistent step and apply the Gertz-

authorized negligence standard to non-media defendants

where recovery of compensatory damages is sought.

Another subsidiary issue that arises from establishment of a

negligence standard for compensatory damages is the current

status of the common-law qualified privileges in Virginia. Un-

like some jurisdictions, Virginia does not permit a qualified

privilege to be defeated upon a showing of mere negligence. We

require proof of common-law malice, that is, behavior actuated

by motives of personal spite, or ill-will, independent of the

occasion on which the communication was made. Story v.

Newspapers, Inc., 202 Va. 588, 590, 118 S. E.2d 668, 670 (1961).

This being a more stringent standard than negligence, the

qualified privileges survive in Virginia. This means, of course,

that the defendant may still avoid liability based on qualified

privilege even though the negligence standard is met by the

plaintiff. When a qualified privilege is established and not

defeated by a plaintiff’s evidence of common-law malice, the

negligence standard is subsumed in the higher standard and it

is of no consequence that the plaintiff might have met the lower

standard of negligence. Jacron Sales Co., 276 Md. at 600, 350

A.2d at 699-700.

The other subsidiary issue involves the scope of appellate

review in these cases. Relying on Bose Corp. v. Consumers

Union of the United States, Inc., 104 S.Ct. 1949 (1984), the

media defendants assert that, in a case raising First Amend-

ment issues, an appellate court has an obligation to make an

l6a .

independent examination of the entire record in order to insure

that the judgment of the trial court does not constitute a

forbidden intrusion on the exercise of free expression. We

agree that an appellate court in Virginia must conduct such

independent examination of the whole record on the issue of

punitive damages or where New York Times malice must be

established, but not on the question of compensatory damages

when New York Times malice need not be proven.

Bose primarily is concerned with the application of Rule

52(a), Federal Rules of Civil Procedures, which fixes a “clearly

erroneous” standard for federal appellate review of findings of

fact. Nevertheless, the Supreme Court in First Amendment

cases arising in state courts repeatedly has held that the inde-

pendent examination contended for is required on review. See,

e.g., New York Times, 376 U.S. at 284-86; St. Amant, 390 U.S.

at 732-33. In Bose, the Court held: “The requirement of inde-

pendent appellate review reiterated in New York Times v.

Sullivan is a rule of federal constitutional law.” 104 S.Ct. at

1965. Consequently, because we apply the federal constitu-

tional rule of New York Times to the punitive-damage issue in a

State defamation suit, we likewise apply the federal constitu-

tional rule of independent appellate examination to such an

issue.

Thus, we hold that an appellate court in Virginia, on the issue

of punitive damages or where New York Times malice must be

proven, must independently decide whether the evidence in

the record on appeal is sufficient to support a finding of New

York Times “actual malice” by clear and convincing proof. 104

S.Ct. at 1965. This does not mean that the reviewing court may

disregard the determinations made on credibility of witnesses

by the trier of fact or that the presumption of correctness that

attaches to factual findings is to be discounted. Jd. at 1959. The

rule simply means that appellate judges in such a case must

examine the facts pertinent to the punitive-damage award and

exercise independent judgment to “determine whether the

record establishes actual malice with convincing clarity.” Jd. at

1967.

17a

\

\

In contrast, however, on the issue of compensatory damages

in libel cases when New York Times malice need not be proven,

we will continue to follow the established standard of review

mandated by Code § 8.01-680, that is, “the judgment of the

trial court shall not be set aside unless it appears from the

evidence that such judgment is plainly wrong or without evi-

dence to support it.” The reason we do not embrace Bose on

this issue is that the Bose mandate of independent examination

is bottomed on the obligation of reviewing judges to assure that

governing federal constitutional law has been applied properly.

The negligence standard for compensatory damages that we

have adopted is not a matter of governing federal constitutional

law; rather, within the parameters authorized by Gertz, we

have fixed the standard as a matter of state law. Accordingly

Bose, as well as the federal decisions on which it is based, is not

controlling on this issue.

Ill. The Gazette, Inc. v. Harris, et al.

In November of 1981, appellees James William Harris, Vir-

ginia Mae Harris, his wife, and Barbara H. Sweeney filed

separate motions for judgment against appellant The Gazette,

Inc., seeking compensatory and punitive damages caused by

an allegedly libelous statement published in the July 30, 1981

editions of the newspaper. The Gazette is published weekly and

circulated in the counties of Goochland and Powhatan.

The plaintiffs, private citizens of Powhatan County, claimed

that readers of the news item in question would understand

they had been charged with aggravated sexual battery. In fact,

a child of the Harrises and a child of Mrs. Sweeney had been

molested by one Harold F. Payne.

The article read as follows:

“CRIMINAL CASES

“The following criminal cases were among those heard

last week in District Court:

18a

Goochland

Danny Johnson, bad check, $80.

Leigh W. Hague, reckelss [sic] driving in boat, $63.

Alvin Fleming, malicious wounding, $130, 90 days

suspended.

Harold F. Payne, aggravated sexual battery, Barbara

H. Sweeny [sic], property bond; aggravated sexual bat-

tery, James and Virginia Harris, property bond charges

certified to circuit court (charges filed in the adult division

of juvenile court).”

Following a consolidated trial of the three cases, the jury

found in favor of James and Virginia Harris, and Barbara

Sweeney, fixing compensatory damages in the amounts of

$30,000, $10,000, and $10,000, respectively. The jury did not

award punitive damages. The trial court entered judgments on

the verdicts, and we granted The Gazette an appeal from the

February 1983 final orders.

The assignments of error present issues pertaining to the

standard of fault to be applied, sufficiency of the evidence,

misdirection of the jury, and excessiveness of the verdicts.

The evidence may be summarized briefly. In July of 1981,

Payne was arrested and charged in Goochland County with

aggravated sexual battery of the Harris child and the Sweeney

child. The three parents were the complaining witnesses

against Payne. A reporter for The Gazette prepared a narrative

story about the incidents and submitted it to the paper's editor.

After reviewing the draft, the editor directed the reporter to

verify the charges from court records.

The reporter examined the pertinent docket page of the

Juvenile and Domestic Relations District Court of Goochland

County. The information on the docket sheet was contained in

pre-printed columns, the head of each column containing pre-

printed or typed words and abbreviations. Symbols for respec-

tive columns, reading from left to right, were as follows:

19a

“COUNSEL CA P W”; “OFFICER/CMPLNT BSE”; and

“CCRE DATE APPEAL DATE.” The reporter did not under-

stand the meaning of the abbreviations except he knew

“CMPLNT” designated “complainant.”

The reporter copied that portion of the docket page pertain-

ing to Payne’s charges. He made a verbatim abstract except he

did not include the column designations, the dates of the of-

fenses, or the amounts of the property bonds. The copy became

the draft of an article to be included in “The Public Record”

section of the July 30th issue. “The Public Record” was a

regular feature of the paper and routinely included information

from the local public records about real estate transfers record-

ed, building permits issued, criminal cases heard, and mar-

riage licenses issued.

The reporter submitted his second draft to the editor, who

approved it because he considered it to be accurate and concise.

The editor testified, dissecting the article, that the item intend-

ed to convey to the reader that Payne was the defendant

charged with aggravated sexual battery, that Mrs. Sweeney

was the “person placing the charge,” and that Payne was “out”

on a property bond. The editor continued: “Semicolon, we start

back with the antecedent, which is Mr. Payne, aggravated

sexual battery again, James and Virginia Harris placing the

charges.” He further testified: “Again, a property bond has

been posted and the charges are certified to the Circuit Court.”

The evidence showed that only the defendant’s name was in-

serted in the majority of listings in “The Public Record” and

that, prior to the date in question, the names of complaining

witnesses and crime victims were never listed.

The plaintiffs showed that they had enjoyed good reputations

prior to the publication and that they did not wish the vulgar

incidents involving their children to become matters of public

knowledge. They also proved that persons in the community

interpreted the news item to mean they had been accused of

immoral conduct. In addition, the plaintiffs established they

were embarrassed, upset, hysterical, and emotionally

damaged as the result of the publication.

20a

Over the newspaper's objection, the trial court applied a

negligence standard. No additional discussion is necessary to

explain our rejection of the newspaper's argument that New

York Times malice should have been adopted by the trial court

as the proper standard of liability.

Application of the express limitation, which was articulated

in Gertz and which now has been incorporated in the Virginia

rule, was not an issue below. Nonetheless, we are of opinion

that the content of the statement in question makes substantial

danger to reputation apparent. In other words, the news item,

under the circumstances, should warn a reasonably prudent

editor of its defamatory potential.

The threshold determination to be made by a trial judge on

the question whether there is substantial danger to reputation

apparent from the content of a publication resembles the deter-

mination traditionally made by the court on the question

whether a statement is libelous per se. A trial judge must

decide, viewing the circumstances objectively, whether a rea-

sonable and prudent editor should have anticipated that the

words used contained an imputation necessarily harmful to

reputation. We hold that the harmful potential of the words

used here, ?.e., that plaintiffs were accused of crimes, should

have been apparent to the paper's editor, if he had exercised

ordinary care.

Viewed objectively, the publication may be interpreted to

report that Mrs. Sweeney and the Harrises had been charged

with aggravated sexual assault. The evidence showed that

prior to the date of the publication in question, no edition of The

Gazette has published in “The Public Record” portion of the

paper the name of any person except that of a defendant.

Indeed, the three cases reported immediately above the Payne

charges apparently recited the names of the defendants only.

Also, the article contained no information which explained the

significance of the names appearing ‘n the segment referring to

the plaintiffs. A reader, perusing the words in sequence, would

probably conclude from the arrangement of the language that

2la

the plaintiffs were charged with crimes and that they had been

required to post property bonds in order to remain at large and

free of custody pending trial of the charges. Such a conclusion

would be justified because the information follows the same

pattern—charge, name of person or persons charged, and re-

quirement of bond. The listing of Payne’s name at the beginning

of the item is a confusing factor but does not detract from the

defamatory potential of the the remaining language.

Under these circumstances, a reasonable and prudent editor

should have been alerted to the likelihood of damage to reputa-

tion. The publication was not merely confusing, unclear, and

garbled (conditions which ordinarily would not create defama-

tory potential); it also used language containing imputations

necessarily harmful to reputation. Consequently, the express

limitation was not applicable and the trial court correctly

adopted the negligence standard.

The Gazette contends that even if the trial court was correct

in applying a negligence standard of liability, the court erred in

submitting the case to the jury on that issue. The newspaper

argues there was insufficient evidence on which a rational juror

could conclude that the paper was negligent. We disagree.

The pertinent instruction informed the jury, in part, that “in

order to establish that Gazette was at fault, plaintiffs must

prove bye preponderance of the evidence that Gazette acted

with negligence in preparing and publishing the article.” This

instruction comports with the essential elements of the stan-

dard we have articulated today. The evidence showed that the

editor believed the report to be true although, reasonably

interpreted, the article was false. The editor testified that he

thought the item was accurate and concise because it was an

apparent verbatim copy of a court record. But it was for the

jury to determine whether the principals of The Gazette, the

reporter and editor in this case, lacked reasonable grounds for

their belief in the accuracy of the article or, alternatively,

negligently failed to ascertain the facts, especially because the

publication did not identify the roles the plaintiffs played in the

22a

criminal proceedings reported. This failure to describe the

significance of the names appearing in the item resulted from

carelessness “in preparing and publishing the article,” in the

language of the instruction.

On the question of negligent preparation, we already have

discussed the reporter’s admitted inability to interpret the

symbols, except for “CMPLNT,” on the docket page. No ver-

ification of the information finally gathered was sought by the

reporter or suggested by the editor. Consequently, a complete

understanding of the only source of information, the court

record, was essential to the accuracy and clarity of the report.

The jury was entitled to conclude that the reporter was negli-

gent because of his ignorance. The jury also was entitled to find

that the negligence should not have been excused merely be-

cause the court record was copied almost verbatim and because

the format of the publication did not deviate substantially from

the form of the docket page. Finally, the article did not even

include the information conveyed by the symbol “CMPLNT,”

the only abbreviation understood by the reporter. This was an

act of omission that the jury also could determine constituted

negligence.

There were substantial additional facts presented on the

question of negligent publication. For example, the reporter

who wrote the article testified tne item “looked like an error,”

thereby admitting that the article conveyed an inaccurate rep-

resentation of the plaintiffs’ involvement in sensitive crimes.

The editor indicated the item was “not unclear,” but The Ga-

zette’s publisher, when asked if he understood what the article

said, replied, “I think I do.” The publisher, who did not review

the article before printing, conceded he previously had stated

that he understood the article to mean the plaintiffs had posted

property bonds “because they charged somebody with aggra-

vated sexual assault.” (emphasis added). In addition, the jury

was entitled to determine whether, in reporting crimes of this

magnitude, the long-standing custom of The Gazette should

have been violated, by publication of the complaining wit-

nesses’ names, without greater care being exercised to assure

23a

that the item’s format accurately conveyed the information

reported.

Next, the newspaper contends the trial court erroneously

instructed the jury that it could award damages for injury to

reputation. While conceding that the plaintiffs established

they enjoyed good reputations in Powhatan County prior to the

publication, the paper asserts that, with one exception, there

was not a shred of evidence of what the plaintiffs’ respective

reputations were after the alleged libel.” The defendant con-

tends that Mrs. Sweeney’s employer testified that Mrs. Sween-

ey’s reputation did not suffer “in the least” as a result of the

publication. The newspaper asserts that other witnesses opin-

ed that the Harrises’ reputation had not changed “an iota” as

_ the result of the libel.

>

Viewing the evidence in the light most favorable to the

plaintiffs, who are before us armed with jury verdicts approved

by the trial court, we find there was sufficient circumstantial

evidence of damage to plaintiffs’ reputation caused by the libel.

For example, Mr. Harris testified that following publication of

the article, which essentially charged the plaintiffs with being

sexual perverts in a rural county, neighborhood children

“stopped coming to the house.” Harris also testified that he had

observed differences in the way neighbors treated him before

and after the incident. A friend of the plaintiffs testified that

his prior good opinion of the Harrises and Mrs. Sweeney was

renewed after the incident only upon a full explanation of the

meaning of the news report.

Next, defendant claims the trial court misdirected the jury

by refusing two instructions on the issue of damages. We find

no error in this regard. An instruction tendered by defendant

on the question of proximate cause was an incorrect statement

of the law. A nominal damage instruction proffered by the

paper had two vices. First, if given, it improperly would have

suggested to the jury the amount of a nominal award—“you

may return a verdict for the plaintiff in some nominal amount

such as one dollar.” Second, it was unnecessary, for the reasons

24a

we shall elaborate upon in the next section of this opinion. In

that section, we discuss the refusal of a nominal damage in-

struction offered by a media defendant which made a conten-

tion in support of the instruction similar to that made by The

Gazette and which relied on the same case authority cited by

The Gazette.

Finally, the newspaper argues the verdicts of $30,000,

$10,000, and $10,000, respectively, are excessive in amount,

relying on general statements from our cases which set forth

criteria for determining excessiveness. In the main damage

instruction, Instruction 11, the trial court permitted the jury

to consider, in determining the amount of the awards, the

circumstances surrounding the statement, the occasion on

which it was made and the extent of the publication, the nature

and character of the insult, the probable effect on those who

“heard” the statement, and its probable effect upon the respec-

tive plaintiffs’ “personal feelings and upon [their] standing in

the community and in business.” The instruction authorized

the jury to compensate the plaintiffs for insult, including pain,

embarrassment, humiliation, and mental suffering; injury to

reputation; and, in the case of Mr. Harris, any monetary loss,

including medical expenses, caused by the publication.

The focus of the defendant’s excessiveness argument is upon

the alleged failure of proof to support, in defendant's words,

“injury to business.” The newspaper asserts that Mr. Harris

was not employed and was not seeking employment, that the

record does not reflect whether Mrs. Harris was employed, and

that Mrs. Sweeney had merely failed to receive a pay raise

following the incident. This is actually an insufficiency-of-the-

evidence argument.

We will take no further notice of this contention dealing with

injury to plaintiffs’ “business” because defendant failed to ob-

ject to that portion of Instruction 11 which permitted the jury

to assess an amount on account of such a loss. The sole objec-

tion by defendant to Instruction 11 was that “tuere is no

evidence of any damage to the reputation of any plaintiff.”

25a

Because defendant did not object below to the “business” ioss

reference in the instruction, on the ground of insufficiency of

the evidence to support such an item, the defendant will not be

permitted to rely on such ground on appeal. See Rule 5:21. The

basis for such a ruling is obvious. If the argument made on

appeal had been made to the trial judge, the court would have

had the opportunity to consider the question and the instruc-

tion could have been amended by deleting the reference to

business loss, assuming the defendant's contention is correct.

The balance of defendant's excessiveness argument suffers

from the same deficiency. The newspaper now contends there

was no competent evidence to support the plaintiffs’ alleged

emotional injuries, asserting the plaintiffs “offered only vague

generalizations and conclusory, self-serving opinions. . . .”

Continuing, the defendant argues: “These statements of opin-

ion or conclusion—utterly lacking a factual basis—cannot meet

the standards ... of competent evidence of actual injury.”

This, too, is an argument that the evidence was insufficient to

support a finding that the plaintiffs suffered mental distress; it

is not a true excessiveness argument. This contention should

have been made to the trial court in opposition to the pertinent

elements of Instruction 11. It was not. Consequently, for the

reasons already assigned, such contention will not be noticed

for the first time on appeal under the guise of an argument that

the verdicts are excessive.

The judgments in favor of the plaintiffs will, therefore, be

affirmed.

IV. Charlottesville Newspapers, Inc. v. Matthews

In March of 1982, appellee Debra C. Matthews sued ap-

pellant Charlottesville Newspapers, Inc., for compensatory

and punitive damages resulting from an allegedly libelous pub-

lication appearing in the February 4, 1982 edition of The Daily

Progress, a newspaper of general circulation in the City of

Charlottesville. The plaintiff alleged that a news article pub-

lished by defendant about the outcome of a rape trial libelled

her in that the item identified her by name, referred to her on

26a

seven occasions as “Miss Matthews” when in fact she was

lawfully married, and stated that she was pregnant at the time

she allegedly was raped by one Jeffrey Williams.

The headline and first four paragraphs of the ten-paragraph

article stated:

“MAN FOUND GUILTY OF FORNICATION

“An Albemarle County Circuit Court jury found Jeff-

ery [sic] Williams of 2221 Jefferson Towne apartments

guilty of fornication Wednesday and fined him $100.

“Williams, 31, had been charged with the rape on May 8

of Debra C. Matthews, 23, of Whitewood Villiage [sic]

Apartments.

“Fornication, a misdemeanor, is the crime of voluntary

sexual intercourse by an unmarried person.

“According to Miss Matthews’ testimony at the pre-

liminary hearing, the incident occurred at the apartment

of Williams’ sister, Rosyln Wood. Miss Matthews, who was

pregnant at the tme, had gone there to dress because the

electricity was out at her apartment.”

The remainder of the article, continuing to refer to the plaintiff

as “Miss Matthews,” related the facts of the alleged rape and

summarized statements of Williams’ attorney made after the

criminal trial.

The case was tried to a jury and, at the conclusion of the

plaintiffs evidence, the claim of punitive damages was aban-

doned. The jury found in favor of the plaintiff and fixed her

compensatory damages at $25,000. The trial court confirmed

the verdict, and we awarded the newspaper an appeal from the

January 1983 judgment order.

The defendant contends that the article was not actionable as

a matter of law, that compensatory damages are recoverable

against a media defendant in a libel suit only upon proof of New

27a

York Times malice and not mere negligence, that the evidence

was insufficient as a matter of law to establish negligence, and

that the trial court erred in refusing to instruct on qualified

privilege and nominal damages.

The trial court applied a negligence standard. No further

discussion is necessary to explain our disagreement with the

newspaper's contention that the New York Times malice stan-

dard should be adopted for proof of compensatory damages.

The question whether the content of the article makes sub-

stantial danger to reputation apparent was not an issue below.

Nevertheless, we are of opinion that the limitation on applica-

tion of the negligence standard should not operate in this case.

As we have said, the threshold determination to be made,

under the limitation and before applying the negligence princi-

ple, is whether as a matter of law, when viewing the circum-

stances objectively, a reasonable and prudent editor should

have anticipated that the words used contained an imputation

necessarily harmful to reputation. Manifestly, the content of a

news item which states that an unmarried woman is pregnant

creates a substantial danger to reputation and should warn a

reasonably prudent editor of the item’s defamatory potential.

One reasonable construction from such a reference is that the

female committed the crime of fornication and became preg-

nant from the act. Therefore, the trial court’s adoption of the

negligence rule was proper.

In a sense, the foregoing discussion on defamatory potential

forecasts our decision on the newspaper's claim that the trial

court should have decided, as a matter of law, that the article

was not in fact defamatory instead of permitting the jury to

pas. on the question.

“Although varying circumstances often make it difficult

to determine whether particular language is defamatory,

it is a general rule that allegedly defamatory words are to

be taken in their plain and natural meaning and to be

understood by courts and juries as other people would

28a

understand them, and according to the sense in which

they appear to have been used. In order to render words

defamatory and actionable it is not necessary that the

defamatory charge be in direct terms but it may be made

indirectly, and it matters not how artful or disguised the

modes in which the meaning is concealed if it is in fact

defamatory. Accordingly, a defamatory charge may be

made by inference, implication or insinuation.” Carwile v.

Richmond Newspapers, 196 Va. 1, 7, 82 S.E.2d 588,

591-92 (1954).

Not only should a reasonably prudent editor have appreciated

the defamatory potential of the item in question, the publica-

tion was sufficiently defamatory on its face, under Carwile, to

permit a jury to decide whether in fact the statement actually

was defamatory. Thus, the trial court did not err in failing to

decide the question as a matter of law.

The defendant attacks on appeal the sufficiency of the evi-

dence to prove negligence. That issue was not raised in the trial

court. During argument of its motion to strike the evidence,

made at the conclusion of the plaintiff’s case and renewed at the

end of the evidence, the defendant argued against adoption of

the negligence standard. It never contended that the evidence

was insufficient to raise a jury issue as to defendant’s negli-

gence. After the trial judge announced that he would apply the

negligence standard, the defendant argued only two issues.

First, it asserted that the publication was not actionable. Sec-

ond, it argued that the paper should be exonerated on the basis

of qualified privilege. Moreover, in stating its objections to the

instructions, the defendant did not argue insufficiency of the

evidence, only that the standard should be New York Times

malice and not negligence. Accordingly, we will not notice on

appeal an issue that was not raised in the trial court. Rule 5:21.

Parenthetically, it is quite understandable why sufficiency of

the evidence was not raised below because, as will be apparent

from the discussion that follows, evidence of the newspaper's

negligence was abundant.

ear si RE ET I ee On a

29a

Discussion of defendant's contention that it was protected

from the accidental mistake by qualified privilege requires 2

brief recitation of the facts. The author of the article had beéh

hired as a part-time reporter and photographer by the news-

paper about a month before the item was published. The young

reporter had received no training, guidance, or instruction in

covering the “courthouse beat.” His only prior experience con-

sisted of: work on his high school yearbook; participation in two

college journalism courses; and compilation of information for

one magazine article.

The reporter did not attend the rape trial in the cireuit court

or the preliminary hearing on the charge in the general district

court. Instead, he based his article on a review of the transcript

of testimony given at the preliminary hearing, without know-

ing whether that same testimony was presented in the circuit

court trial. The plaintiff was identified throughout the pre-

liminary hearing transcript as “Mrs. Matthews.” The reporter

claimed to have obtained some of the facts from an interview

with a circuit court deputy clerk, but the clerk testified that she

only handed the reporter the court file and did not talk to him.

The defense attorney in the criminal trial testified that the

reporter merely asked him by telephone for a comment on the

outcome of the trial. During examination by the plaintiff as an

adverse witness, the reporter admitted that he did not talk to

the criminal defendant, the Commonwealth’s Attorney or any

of his assistants, the court reporter who was present at trial,

the bailiff on duty in the courtroom, the investigating police

officer, anyone in the sheriffs office, anyone at the hospital

where the plaintiff was taken after the alleged rape, the judge,

or any jurors. The reporter testified that his use of “Miss” was

‘Just a slip of my memory.”

The defendant's city editor, supervisor of the reporter who

wrote the article, testified that although The Daily Progress

had a policy of not printing names of alleged rape victims, the

paper printed the plaintiffs name in this instance because the

jury had determined she was not a victim of rape. He also

30a

testified that he “had no idea” that the reference to the plaintiff

was false, and that nothing about the article put him on notice

of a factual mistake. He stated that it “never occurred” to him

that calling a person “Miss” and saying she was pregnant might

be offensive.

As we have said, the common-law qualified privileges sur-

vive establishment of the negligence standard for compensato-

ry damage recovery in Virginia. Nevertheless, we reject the

newspaper's contention that it was entitled to an instruction on

the defense of privilege in this case. The defendant argues that

its account of the court proceedings was a fair, impartial, and

substantially accurate report, and that the trial court erred in

failing to permit the jury to determine whether the privilege

applied and, if so, whether the paper abused the privilege.

We hold that the defamatory words, as a matter of law, were

not substantially accurate. Manifestly, the only factual errors

in the article related to the paper's description of Mrs. Mat-

thews’ marital status. Nonetheless, the defamatory content of

the article is not cured by the newspaper's otherwise “substan-

tially accurate” account of the criminal trial. The designation of

Mrs. Matthews as “Miss” was wholly inaccurate. That act was

at the root of the wrong that defamed her. The clear error in

describing the plaintiffs marital status, coupled with the gra-

tuitous mention in the article of her pregnancy, resulted in

damage to her reputation. Hence, the inaccurate publication

deprives the newspaper of the benefit of the privilege that

arises from reporting court proceedings. See Times-Dispatch

v. Zoll, 148 Va. 850, 857-58, 189 S.E. 505, 507 (1927).

Finally, the defendant contends the trial court erred in refus-

ing to instruct the jury on nominal damages as follows:

“Nominal damages are those recoverable where a legal

right is to be vindicated against an invasion that has

produced no actual present loss of any kind or where, from

the nature of the case, some injury has been done the

amount of which the proof fails to show. The law infers

some damage from the invasion of a right.

a ae

3la

“In this connection the court instructs you that, if you

believe from the evidence that there is no proof of actual

damage to the plaintiff resulting proximately from the

defendant's acts, you may award her nominal damages

only.”

Relying on News Leader Co.v. Kocen, 173 Va. 95, 3S.E.2d 385

(1939), the defendant argues that giving a compensatory

damage instruction without a corresponding instruction on

nominal damages creates an “imbalance” that is “objectio-

nable” and consequently constitutes reversible error. We do

not agree.

In Kocen, the trial court used the word “substantial” twice in

a damage instruction to modify the word “compensatory.”

Overturning a judgment for the plaintiff, the Court said: “The

reversible error lies in the fact that the instructions empha-

sized the right of the plaintiff to recover substantial damages

without any instruction laying equal emphasis on the fact that

the jury might return a verdict for nominal damages.” 173 Va.

at 110, 3S.E.2d at 392. In the present case, unlike Kocen, there

was no instruction inviting the jury to award “substantial”

damages. Hence, there being no need to counterbalance, an

instruction on nominal damages was unnecessary, and the trial

court correctly refused to so instruct.

For these reasons, the judgment below in favor of the plain-

tiff will be affirmed.

V. Port Packet Corporation v. Lewis, e¢ al.

In July of 1980, two articles and an editorial on the subject of

child abuse were published in The Alexandria Port Packet, a

weekly newspaper circulated in the Alexandria area. In April

of 1981, appellees E. Grey Lewis and Carolyn G. Lewis, his

wife, sued appellant Port Packet Corporation, publisher of the

paper, for compensatory and punitive damages. In an amended

motion for judgment, the plaintiffs alleged that defendant pub-

lished untrue and defamatory statements concerning the plain-

tiffs, causing them to be exposed to public contempt and

32a

ridicule. The plaintiffs alleged they were embarassed and hu-

miliated, and that their reputations for honesty and integrity

had been impaired.

Following a four-day trial, a jury found in favor of the plain-

tiffs, fixing compensatory damages at $50,000 and punitive

damages at $100,000. The trial court overruled defendant’s

motion to set aside the verdict and entered judgment in favor of

the plaintiffs, jointly, in the amounts fixed by the jury. We

awarded defendant an appeal from the January 1983 final order.

On June 10, 1980, about 8:00 a.m., Edward Grey Lewis, Jr.,

the nine-month-old son of the plaintiffs, was being fed by his

mother from a bottle in a bedroom adjacent to the kitchen of

the plaintiffs home in Alexandria. Mrs. Lewis left the child

momentarily against pillows on a bed while she stepped to the

kitchen to assist Mr. Lewis, who was preparing a strawberry

shortcake. Several minutes later, the plaintiffs heard a “loud

crash” in the bedroom and discovered the child had fallen from

the bed. The child appeared to be seriously injured. The

Lewises rushed the baby to Alexandria Hospital where he died

two days later from head injuries sustained in the fall. Subse-

quently, the Alexandria Child Protective Services Unit and the

Alexandria Police Department investigated the child’s death,

which was ruled accidental. The police officially closed their

investigation on July 28, 1980.

In the meantime, the defendant published in its July 16

edition of The Packet the first of a series of two articles, as well

as an editorial, on the subject of child abuse in Alexandria. The

article, which is the main subject of this dispute, appeared

under the by-line of reporter Adrian Higgins. The headline

read: “2 TOTS DIE AS CHILD ABUSE CLIMBS.” The first

several paragraphs of the ten-column article stated:

“Early in June, nine-month-old Mark fought for his

short life after receiving head injuries in what police

believe was a vicious attack on the infant. Mark lost his

fight.

Se oma A

33a

“The same week two-year-old Robert also suffered a

skull fracture in another suspected attack. Robert clung

to life for two weeks.

“On April 28, a Monday, five year-old Asia Marie re-

turned to a city day care center after a weeke. 1 spent

with her teacher's aide displaying signs of a severe beat-

ing. Asia’s two-year-old sister came back with lesser

injuries.

“What all these frail victims are believed to have in

common is exposure to one of Alexandria’ fastest growing

social problems: child beating.”

The next several paragraphs cited statistics on the incidence of

child abuse in the City, commenting that many assaults on

children go undetected in a “society that has traditionally

regarded the family home a shelter and sanctuary for young

human beings. . . .” The article then summarized an interview

with a supervisor of the local social services department who

indicated that a “greater portion of maitreated children” are of

“parents who have more money, but feel the economic pinch

hard enough to become stressful and violent.”

The article then listed incidents of child abuse, without giv-

ing names of the individuals involved in the alleged offenses.

That information preceded the following:

“Denied even the pains of childhood, nine-month-old

Mark (not his real name) received a fractured sku!] during

the first week of June and was taken to Alexandria Hospi-

tal where he died two days later. Detectives are treating

his death as a homicide.

“The same week two-year-old Robert (not his real

name) suffered similar injuries. At a time when other kids

his age are curiously exploring life’s trinkets, Robert was

taken to Alexandria Hospital and then transferred to

D.C. Children’s Hospital to receive more specialized care.

Hooked up to life support systems in a futile attempt to

revive him, Robert was declared medically dead two

34a

weeks later. Based on autopsy reports, Alexandria police

investigators are also treating Robert’s death as a

murder.”

The remainder of the article discussed the abuse of Asia

Marie, referred to earlier, and her sister. The article concluded

with statements made by Sergeant Ronald Uhrig of the Alex-

andria Police Department. Uhrig was quoted as pointing out

the difficulties in obtaining convictions in child abuse cases,

noting: ““The biggest problem is you have two parents (of an

abused child) and one won’t testify against the other, and

doesn’t have to.”

The editorial in the same edition was captioned “CHILD

ABUSE.” The writer discussed the “painful” subject, pointed

__ out difficulties of proving the charges of abuse, mentioned that

it was necessary to learn of child abuse before it could be

stopped, and stated that notoriety of such cases might be a

“solution” to the “probiem.” The editorial concluded:

“It may be that publicity is the main weapon against the

child abuser. It is a shameful thing to be known as a child

abuser. It might influence the abuser if he or she knew

that the glare of news coverage and the probability of the

neighbors knowing all about [sic] was part of the act.

“Could it work?”

The issues on appeal involve whether there was sufficient

identification of the plaintiffs in the publication to form a basis

for an action of libel; whether a negligence standard should be

adopted for an award of compensatory damages; whether the

evidence was sufficient to sustain the damage awards; and

whether the awards were excessive.

Discussion of the identification question requires a summary

of the evidence. James W. Coldsmith, publisher and editor of

The Packet, and Adrian Higgins, one of the paper's two full-

time reporters, became interested in the probiem of child abuse

in Alexandria. They decided to proceed with an article on the

Pte Hon id

35a

general subject and this effort eventually became the two-part

series published in July of 1980.

Police Sergeant Uhrig was among the individuals inter-

viewed by Higgins in preparing the series. During the course of

the mid-July interview, Uhrig told Higgins about several in-

stances of suspected child abuse, including the death of a nine-

month-old child. Without identifying the victim by name,

Uhrig told the reporter that the child was a male who died from

head injuries, including a skull fracture, which were not consis-

tent with a normal fall. Actually, Uhrig was relating the bare

facts of the death of the plaintiffs child. He told Higgins that

the child died in early June at Alexandria Hospital. He also told

Higgins that the case was classified as a suspicious death and

that it was being investigated procedurally as a homicide.

Uhrig testified that he explained to Higgins that the final

results of a police investigation determine the ultimate classi-

fication of a death, whether it be accidental, natural, or a

homicide. Initially, he explained, a death that is not natural is

classified by the police as a homicide.

Uhrig testified that he did not tell Higgins that the police

believed there had been “a vicious attack” on the infant, that

the child was a victim of “child beating,” or that the police were

treating the child’s death as a “murder.” Uhrig further testified

that, after publication of the article, he told Higgins that he

objected to use of words in the article that were not Uhrig’s

words, especially the use of “vicious attack.” According to

Uhrig, the reporter replied that he used the words “to be very

graphic.”

Higgins testified that because Uhrig did not identify the

nine-month-old child, as well as the two-year-old which was

discussed in the interview, he decided to give the children the

fictitious names of “Mark” and “Robert.” The reporter stated

this was a “writing tool” that provided a convenient way to

refer to the children in the article. One expert witness testified

that the journalistic term for such a device is “anecdotal lead.”

In preparing the article, the reporter intended to inform the

paper's readers, in general terms, of what he believed was a

36a

growing social problem in the Alexandria area. There was no

intention to deal specifically with any of the cases mentioned in

the publication, only to discuss the incidents as illustrative of

the “problem.” Higgins did not seek further verification of the

information he received about “Mark” because he assumed,

mistakenly, that Uhrig was in charge of the investigation into

the cause of the child’s death. The reporter also decided that an

attempt for additional verification, from anyone who was in a

position to know the facts, would be futile because of the

confidential nature of such information. At the time the article

was published, neither Higgins nor Coldsmith, the publisher

and editor, knew the identity of “Mark” or his parents.

Coldsmith reviewed and edited the article prior to publica-

tion. He had confidence in Higgins, who was a British-trained,

award-winning reporter with considerable experience. Col-

dsmith knew that Higgins had interviewed Uhrig, an “official

source,” and perceived no need for additional investigation

about the facts of “Mark’s” death. Coldsmith, who wrote the

editorial, believed the article met the standard of a reasonably

prudent journalist.

The plaintiffs presented extensive evidence that members of

the community who knew the Lewises, or knew of them, identi-

fied the plaintiffs as parents of the child named “Mark” in the

article. This evidence came not only from the plaintiffs them-

selves but also from a relative, friends, officials involved in the

investigation, and virtual strangers.

Initially, the defendant argues on appeal the identification

question. This was first raised in the trial court by demurrer.

Emphasizing that the fictitious name “Mark” was used and that

the article nowhere refers to the plaintiffs, the newspaper

contends that the publication is not actionable because it con-

tained no defamatory imputation against any particular indi-

vidual who is reasonably identifiable by the words of the arti-

cle. In addition, the defendant urges that the evidence failed to

show, under the pertinent instruction in the case, that the

article was intended to refer to the plaintiffs. We disagree with:

both contentions.

37a

In Virginia, a libel plaintiff must show that the alleged libel

was published “of or concerning” him. Cave v. Shelor, 16 Va. (2

Munf.) 193 (1811). He need not show that he was mentioned by

name in the publication. Instead, the plaintiff satisfies the “of

or concerning” test if he shows that the publication was intend-

ed to refer to him and would be so understood by persons

reading it who knew him. Powell v. Young, 151 Va. 985, 997-98,

144 S.E. 624, 627, rev’d on other grounds, 151 Va. 1002, 145

S.E. 731 (1928). In other words, the test is met if the plaintiff

shows that the publication was “in its description or identifica-

tion such as to lead those who knew or knew of the plaintiff to

believe that the article was intended to refer to [him].” Butler

v. News-Leader Co., 104 Va. 1, 7,51 S.E. 213, 215 (1905). But if

the publication on its face does not show that it applies to the

plaintiff, the publication is not actionable, unless the allega-

tions and supporting contemporaneous facts connect the li-

belous words to the plaintiff. If the rule were otherwise, any

plaintiff could adopt and apply to himself any libelous matter

and obtain a recovery. Ewell v. Boutwell, 138 Va. 402, 413, 121

S.E. 912, 915 (1924).

The Restatement comment is consistent with the rule in

Virginia.

“It is not necessary that the plaintiff be designated by

name; it is enough that there is such a description or

reference to him that those who hear or read reasonably

understand the plaintiff to be the person intended. Ex-

trinsic facts may make it clear that a statement refers to a

particular individual although the language used appears

to defame nobody.” Restatement (Second) of Torts § 564

comment b (1977).

In the present case, even though the publication on its face

did not refer to the Lewises by name, the contemporaneous

facts sufficiently connected the publication to the plaintiffs to

establish an issue for the jury. These facets included the exten-

sive testimonial evidence that, immediately upon publication of

the article, many individuals who knew the plaintiffs, or knew

38a

of them, identified the Lewises as the parents of “Mark.” The

conclusions of those witnesses are amply supported by under-

lying facts which establish an interconnection from “Mark” to

the Lewis child to the Lewises.

The article recited specific details about the child’s sex and

age, the nature of his injuries, when he died, how he died, the

hospital where he died, and how long he lived after sustaining

the injuries. This was not simply a report stating that an infant

recently died in a local hospital of head injuries in a case of

suspected child abuse. Instead, the publication was explicit in

detailing “Mark’s” tragedy using the exact jacts surrounding

the death of the Lewis child. One of the plaintiffs’ expert

witnesses stated the obvious when he testified: “The more

identifying detail that is made available to you, the more you

might tend to know who this person is, even though you never

knew the person by name as such.”

The evidence supporting the connection to the plaintiffs,

parents of “Mark,” is just as strong. The article and editorial

pointedly focused on parents of abused children and tied those

references to the cases documented. The editorial made specif-

ic reference to the article and suggested that “publicity is the

main weapon against the child abuser.” Noting that being

known as a child abuser is “sha<ful,” the writer opines that

“the glare of news coverage” wi. alert “the neighbors” to the

abuser'’s conduct, a reference that obviously includes parents

as those to be in the “glare” of publicity. Moreover, there were

repeated references in the article to the parents’ role in the

child abuse problem. For example, the “family home” which

was formerly a “shelter” for children has been converted to “a

battlefield,” according to the article. A cause of the increasing

number of attacks on children is “parental stress” erupting in

the homes “of parents who have more money” than “poor

families,” the publication reported. Mr. Lewis is an attorney

practicing in the District of Columbia. In addition, the article

and editorial pointed out the difficulty in prosecuting cases of

child abuse because often a mere infant is involved and neither

of the parents will testify against the other. But see Code

§ 19.2-271.2.

39a

Consequently, we hold the trial court did not err in ruling

that the question of identification was an issue of fact to be

decided by the jury.

The foregoing comments dispose of the defendant's conten-

tion that the evidence was insufficient to refer to the plaintiffs

“as required by the law of the case. . . .” The following instruc-

tion was given without objection as to form:

“The newspaper article in issue does not name the

plaintiffs. In order to recover, therefore, the plaintiffs

must show by a preponderance of evidence that the article

was published of and concerning them.

“In order so to find, you must determine that the article

was intended to refer to the plaintiffs, directly or indi-

rectly, and that it is reasonably probable that members of

the public who read the article would understand it as

referring to them.”

Defendant argues that there was no evidentiary basis for the

jury to have found that the article was intended to refer to the

plaintiffs, either directly or indirectly. We do not agree.

True, neither the reporter nor the editor knew the identity of

the child named “Mark,” or that the plaintiffs were the parents

of the child. Nevertheless, this does not mean that the defen-

dant did not intend the article to refer to the Lewises indi-

rectly. The Packet had embarked on a crusade against child

abusers. This is clear from the editorial. As a part of this

campaign, the newspaper intended that parents abusing chil-

dren be identified. As the plaintiffs argue, the jury could

reasonably conclude that the newspaper intended to refer di-

rectly to “Mark's” abusers, his parent or parents, and there-

fore, indirectly to the Lewises. Accordingly, the jury’s finding

is supported by sufficient evidence and is consistent with the

pertinent instruction.

Next, the defendant contends that a showing of more than

simple negligence is necessary for an award of compensatory

damages. This argument already has been considered and

40a

rejected. The trial court properly applied a negligence stan-

dard. The threshold question of facial defamatory potential was

not an issue below. We conclude, nevertheless, that the content

of the article should have warned a reasonably prudent editor

of its defamatory potential.

The publication categorically stated that the Alexandria Po-

lice were treating the death of “Mark” as a murder. In a para-

graph devoted to “Robert,” the article noted that police “are

also treating Robert’s death as a murder.” The use of “also”

clearly refers to the preceding paragraph about “Mark’s”

death. Furthermore, the clear implication from the headline

and the content was that the murder occurred during an act of

child abuse as the result of a “vicious attack on the infant.”

These circumstances, viewed objectively, should have alerted

an editor, who was exercising reasonable care, to the harmful

potential of the words used, i.e., that the parents of the child

dubbed “Mark” were charged with murder, a fact that was

utterly false. The evidence showed that the reporter and the

editor were not operating under the constraints of a deadline.

Indeed, Coldsmith testified he realized that, with the use of the

“vicious attack” line, “very serious things” and “very serious

events” were being described. A command by the editor for

simple verification with, for example, the police officer actually

conducting the investigation of the death would have revealed

the inaccuracy of the potentially defamatory language.

Next, the defendant contends the trial court erred when it

permitted the jury to award compensatory damages for injury

to reputation when there was no evidence of such injury. The

specific contention is that the trial court improperly included,

as an item in the damage instruction, a direction for the jury to

consider the effect of the defamation upon the plaintiffs’ “stana-

ing in the community” in order to determine injury to reputa-

tion. The defendant says there was no evidence the article had

any effect on the plaintiffs’ standing in the community. We

disagree.

The plaintiffs, residents of the “Old Towne” section of Alex-

andria, presented evidence they feared that some of their

yer 5 tena ag Dette IgG aie -

4la

neighbors, knowing they were accused of child abuse, would

“be on the lookout for further child abuse” because the Lewises

had other children living with them who survived their son. In

addition, Mrs. Lewis related an incident in a local grocery store

when, after the publication, a casual acquaintance, who had

been cordial in the past, “made a complete turn-about and

walked the other direction.” Also, a local realtor stated he had

read the article, had discussed it with friends approximately

six times, and, at a political meeting, had admonished Cold-

smith regarding the publication. The realtor told the editor

that he cbjected to the article and that he thought the paper

“had gone too far” and “was doing bad things to people that

already suffered enough.” This and other evidence was suffi-

cient to permit the jury to consider whether the publication

diminished the plaintiffs’ standing in the community.

We likewise reject defendant’s argument that the compen-

satory-damage award of $50,000 was excessive. The newspaper

contends the jury was influenced by passion and was misled.

The defendant suggests there was an emotionally charged

atmosphere during the trial generated by evidence surround-

ing the tragic death of the plaintiffs’ son. It points out that the

plaintiffs did not prove any monetary damage as the result of

the publication and that the plaintiffs’ mental suffering re-

quired no medical treatment. We conclude that this joint award

to two plaintiffs was not excessive.

Consistent with our decision in Fleming I, the trial court

permitted the jury to assess compensatory damages for plain-

tiffs’ “pain, embarrassment, humiliation and mental suffering,

and any injury to their reputation,” according to the pertinent

instruction. In addition, the jury was admonished to award

damages that resulted only from the defendant's wrong, and

not from other causes. The verdict was approved by the trial

judge.

There is no fixed stendard for measuring compensatory

damages, and the amount of the award is largely a matter of

discretion with the jury to be based on the facts and circum-

42a

stances of each particular case. Unless the amount of the award

is so excessive as to shock the conscience of the court, or to

create the impression that the jury was influenced by passion

or prejudice, a verdict approved by the trial court will not be

disturbed on appeal. Hughes v. Moore, 214 Va. 27, 36, 197S.E.

2d 214, 220 (1973).

A study of this record convinces us that the compensatory-

damage verdict is not excessive. For example, Mrs. Lewis was

“horrified,” “mortified,” and “humiliated” by the article be-

cause, in part, she believed the police felt she and her husband

had attacked their child. The publication, of course, appeared

in the midst of the police investigation. She was “scared to

death” and feared she “was going to be put in prison the next

day.” She was “so sensitive” to the article that she believed

individuals would think she had abused her child and “gotten

away with it and that they shouldn’t associate with [her].” For

about six months after the article was published, the plaintiffs

isolated themselves from friends. In addition, Mrs. Lewis lost

sleep and experienced stomach pains because she was “just

aware of public humiliation.”

Mr. Lewis was “overwhelmed” when he read the article. He

expected to be “indicted at any moment.” He testified that he

was not prepared “to deal with the situation,” in which the

police may have believed “I had viciously attacked and killed

my little boy, Grey.” He testified that his emotions upon reading

the article the day after its publication were different from the

emotions that he had been experiencing over the loss of his son.

He felt “tremendous humiliation,” withdrew from his friends

and associates in the community, and feared the information he

was a child abuser “would spread throughout the community

and into Washington.” A former public servant, Mr. Lewis had

hoped to return to government service, but was concerned by

the competition for posts to which he aspired due to his newly

acquired “baggage.” Also, the Lewises became afraid to disci-

pline their five-year-old daughter by spanking her. They feared

“somebody will hear about it, then will say, ‘Oh, God, there are

the Lewises again.’”

43a

Next, the defendant contends that the evidence failed to

establish a basis for an award of punitive damages. The trial

court submitted the punitive-damage issue to the jury with a

requirement that New York Times malice must be established

by the plaintiffs. This action would have been correct if there

had been sufficient evidence to clearly and convincingly prove

that the defendant made the statements knowing they were

false or made them so recklessly as to amount to a willful

disregard for the truth. But we have conducted an independent

examination of the entire record, according to Bose Corp. v.

Consumers Union of the United States, Inc., and have deter-

mined that the evidence is not sufficient to support a finding of

New York Times “actual malice” by clear and convincing proof.

The conduct of the defendant was negligent, but not mali-

cious in the New York Times sense. The record is devoid of

evidence to show that the reporter or editor knew the defama-

tory statements were false. Therefore, the plaintiffs must re-

cover punitive damages, if at all, upon evidence of reckless

disregard of whether the words were false or not. The articles

were researched in depth. In addition to Uhrig, Higgins talked

with the supervisor of the Child Protective Services Unit of the

Alexandria Department of Social Services, two assistant city

prosecutors, the director of a local program dealing with

abused children, and a social worker. The articles were edited

in a deliberate fashion with consideration given to accuracy.

Because the editor was aware that the reporter had used an

“official source” for the “serious” portions of the article, no

further verification was suggested. The editor approved the

article for publication believing it complied with standards of

proper journalism.

In making an independent examination of the record on this

issue, we must be certain that the judgment for punitive

damages “does not constitute a forbidden intrusion on the field

of free expression.” New York Times, 376 U.S. at 285. With this

mandate in mind, we cannot say that the record in this case

establishes the required actual malice with convincing clarity.

The defamatory statements were not made, under the evi-

42a

stances of each particular case. Unless the amount of the award

is so excessive as to shock the conscience of the court, or to

create the impression that the jury was influenced by passion

or prejudice, a verdict approved by the trial court will not-be

disturbed on appeal. Hughes v. Moore, 214 Va. 27, 36, 197S.E.

2d 214, 220 (1973).

A study of this record convinces us that the compensatory-

damage verdict is not excessive. For example, Mrs. Lewis was

“horrified,” “mortified,” and “humiliated” by the article be-

cause, in part, she believed the police felt she and her husband

had attacked their child. The publication, of course, appeared

in the midst of the police investigation. She was “scared to

death” and feared she “was going to be put in prison the next

day.” She was “so sensitive” to the article that she believed

individuals would think she had abused her child and “gotten

away with it and that they shouldn’t associate with [her].” For

about six months after the article was published, the plaintiffs

isolated themselves from friends. In addition, Mrs. Lewis lost

sleep and experienced stomach pains because she was “just

aware of public humiliation.”

Mr. Lewis was “overwhelmed” when he read the article. He

expected to be “indicted at any moment.” He testified that he

was not prepared “to deal with the situation,” in which the

police may have believed “I had viciously attacked and killed

my little boy, Grey.” He testified that his emotions upon reading

the article the day after its publication were different from the

emotions that he had been experiencing over the loss of his son.

He felt “tremendous humiliation,” withdrew from his friends

and associates in the community, and feared the information he

was a child abuser “would spread throughout the community

and into Washington.” A former public servant, Mr. Lewis had

hoped to return to government service, but was concerned by

the competition for posts to which he aspired due to his newly

acquired “baggage.” Also, the Lewises became afraid to disci-

pline their five-year-old daughter by spanking her. They feared

“somebody will hear about it, then will say, ‘Oh, God, there are

: ,””

the Lewises a :

43a

Next, the defendant contends that the evidence failed to

establish a basis for an award of punitive damages. The trial

court submitted the punitive-damage issue to the jury with a

requirement that New York Times malice must be established

by the plaintiffs. This action would have been correct if there

had been sufficient evidence to clearly and convincingly prove

that the defendant made the statements knowing they were

false or made them so recklessly as to amount to a willful

disregard for the truth. But we have conducted an independent

examination of the entire record, according to Bose Corp. v.

Consumers Union of the United States, Inc., and have deter-

mined that the evidence is not sufficient to support a finding of

New York Times “actual malice” by clear and convincing proof.

The conduct of the defendant was negligent, but not mali-

cious in the New York Times sense. The record is devoid of

evidence to show that the reporter or editor knew the defama-

tory statements were false. Therefore, the plaintiffs must re-

cover punitive damages, if at all, upon evidence of reckless

disregard of whether the words were false or not. The articles

were researched in depth. In addition to Uhrig, Higgins talked

with the supervisor of the Child Protective Services Unit of the

Alexandria Department of Social Services, two assistant city

prosecutors, the director of a local program dealing with

abused children, and a social worker. The articles were edited

in a deliberate fashion with consideration given to accuracy.

Because the editor was aware that the reporter had used an

“official source” for the “serious” portions of the article, no

further verification was suggested. The editor approved the

article for publication believing it complied with standards of

proper journalism.

In making an independent examination of the record on this

issue, we must be certain that the judgment for punitive

damages “does not constitute a forbidden intrusion on the field

of free expression.” New York Times, 376 U.S. at 285. With this

mandate in mind, we cannot say that the record in this case

establishes the required actual malice with convincing clarity.

The defamatory statements were not made, under the evi-

44a

dence, with a high degree of awareness that they were probably

false. Consequently, the judgment for punitive damages is

erroneous and will be annulled.

Accordingly, the judgment below will be affirmed as to the

compensatory-damage award, reversed as to the punitive-

damage award, and final judgment will be entered for the

plaintiffs on the former award.

VI. Fleming v. Moore

In January of 1977, appellee W. Bedford Moore, III, sued

appellant James N. Fleming for libel arising from an advertise-

ment published a year earlier in The Cavalier Daily, a student

newspaper circulated on the campus of the University of Vir-

ginia and in the Albemarle County area. Fleming was a black

real estate developer and Moore was a white University pro-

fessor. The dispute, and resulting publication entitled

“Racism,” arose from efforts by Fleming, and others, to de-

velop land in the vicinity of Moore’s home situated in the

County.

Following a 1977 trial, the court below entered judgment on

a jury verdict awarding Moore $10,000 compensatory damages

and $100,000 punitive damages. On appeal, we reversed the

judgment and remanded the case for a new trial on all issues.

The 1981 Fleming I decision has been summarized in section

I(C) of this opinion.

The new trial was held in October of 1982 and resulted in a

jury verdict in favor of the plaintiff for $100,000 compensatory

damages and $250,000 punitive damages plus 12 per cent inter-

est on $250,000 from January 16, 1976, upon which the trial

court entered judgment in June of 1983. We awarded the defen-

dant another appeal, limited to questions concerning the stan-

dard of fault to be applied for recovery of compensatory

damages, sufficiency of the evidence to support the punitive

award, excessiveness of both awards, and the correctness of

prejudgment interest on the punitive award. The evidence

presented during the retrial differs to some degree from that

produced at the first trial.

45a

In the mid-1970s, Fleming, a County native and a successful

realtor-appraiser, joined three white business associates in an

effort to develop approximately 127 acres of land in the County

for residential purposes. The site was within the immediate

water-shed of the Rivanna Reservoir, a source of drinking

water. The planned unit development, called “Evergreen,” was

to house lower and middle-income families of both races.

Moore, a resident of the Charlottesville area since 1947, was an

assistant professor in the Humanities Division of the Univer-

sity’s School of Engineering and Applied Science. Moore lived

near the development site. His residence was named “Shack

Mountain” and was described as a Twentieth Century repro-

duction of an Eighteenth Century Jeffersonian pavilion; it was

a “small version” of Monticello, not a “replica.”

During a period of several years, defendant Fleming sought

unsuccessfully to obtain a special permit from county au-

thorities for use of the agriculturally zoned land. Plaintiff

Moore and others opposed the developoment because of con-

cern over the proposed high density (initially, 804 dwelling

units were planned) and because of fear that the reservoir

would be polluted.

A series of public hearings was held before the Planning

Commission and the Board of Supervisors. The plaintiff and

others spoke in opposition to the several plans that were sub-

mitted by the defendant. The Planning Commission staff rec-

ommended that the first Evergreen proposal be rejected main-

ly because the planned density was too great. At the time,

pollution of the reservoir was also of considerable concern to

the planners. The Planning Commission and the Board of Su-

pervisors rejected defendant’s first proposal, mainly because of

the high density projection. The second plan for Evergreen,

with a lower proposed density, was likewise turned down by the

County because of conservation and environmental factors re-

lating to the reservoir. Eventually, the Board of Supervisors in

early 1976 imposed a moratorium on construction within the

reservoir watershed until a study in progress dealing with

pollution of the reservoir could be completed. The jury has

46a

found on disputed facts that race was not a factor in any

decisions made by County officials relating to Evergreen and

that the plaintiff was not motivated by racial considerations in

his opposition to defendant's development.

Nevertheless, as the land-use controversy developed, defen-

dant thought that his plans were being frustrated solely on

racial grounds. He noticed that white developers were obtain-

ing approval of their plans while his were being denied. Also, he

assumed that citizen groups opposing the development were

conspiring against him because he was black. In addition, the

planning staff had recommended a 100-foot tree buffer to sepa-

rate the developed area from the Shack Mountain property.

The defendant believed that the plaintiff was a leading oppo-

nent of Evergreen and that Moore was responsible for imposi-

tion of the condition requiring the buffer. Fleming thought

Moore was attempting to have the buffer placed on Fleming's

property and that Moore somehow would take advantage of a

racially restrictive covenant in prior deeds to the property.

Consequently, defendant drafted the publication in ques-

tion. He arranged for it to appear as a paid advertisement in

two January 1976 issues of The Cavalier Daily, a campus news-

paper read by approximately 15,900 persons. The advertise-

ment is copied verbatim in Fleming I, 221 Va. at 887-88 n.3, 275

S.E.2d at 634-35 n.3. It was headlined “RACISM” and “Signed:

James N. Fleming.”

“I do not expect any Farmington members to buy my

houses. The tenured position-holders who live off the

public dole at the expense of the working people are

already well-housed, and could not be expected to live in a

racially-integrated neighborhood, anyhow.

“There is a great deal of irony in the fact that here in Mr.

Jefferson’s country 200 years after his vision of situating

his beloved Monticello upon the hilltop overlooking the

developing community we have a replica of Monticello

upon the hill overlooking my property which is occupied

by aman who wants to deprive working people of the same

47a

opportunities that Mr. Jefferson sought for them. Mr.

Jefferson even located his slaves’ quarters down the hill

from his house, but Bedford Moore, the occupant of little

Monticello does not want any black people within his

sight.”

The advertisement then referred to a “great conflict” between

the “haves and the have-nots” and stated that “we have created

too much financial security for the tenured segment of the

economic community whose greed is repeatedly shown by their

expression of ‘I’ve got mine—too bad about you”.”

Continuing, the author wrote that he was a “lover of liberty”

and could not stand by to “see the have-nots oppressed by the

no-growth people who are living off of our work.” He next

stated:

“I know that this Country did not achieve the highest

living standard in the world by no-growth or by oppres-

sion of the working man, and yet today the opportunity to

improve one’s living standard is being violently opposed

by the same people who oppose my proposed

neighborhood.

“Pollution of the reservoir is being used as the current

excuse to foster no-growth. The solution, of course, is to

remove the guaranteed incomes of these greedy people

and put them in the position of seeing the world through

the eyes of one seeking the opportunity to improve his or

her living standard. Only then would they admit that the

pollution excuse is a sham.”

The advertisement concluded: “I will develop Evergreen, and a

lot of people will benefit from it.”

Relying on Bose Corp. v. Consumers Union of the United

States, Inc., the defendant contends we should make an inde-

pendent examination of all issues in this case to insure that the

judgment below does not constitute a forbidden intrusion on

the exercise of free expression. In addition, Fleming argues

that the advertisement related to a matter of vital public con-

48a

cern, a land-use controversy, and that New York Times “actual

malice” is the proper standard of liability for compensatory

damages. We have addressed these issues already and no fur-

ther discussion is necessary to explain our rejection of the

contentions. The trial court was correct in applying a negli-

gence standard in this case, and in using the principle in a suit

against a non-media defendant.

We will consider next the question whether the award of

compensatory damages is excessive. The defendant argues

that the award shocks the conscience in that it bears no rela-

tionship to the loss actually sustained by Moore.

Moore read the advertisement on both days it was published.

In describing the effect of the publication, Moore testified that

race had no bearing on his opposition to Evergreen. Rather, he

was concerned about pollution of the reservoir, preserving his

privacy, and protecting the historic character of his home,

which had been placed on the national and state registers of

historic places. Consequently, he testified, he was “very keen-

ly” embarrassed and humiliated by the racial attack because he

had been “brought up with sort of innocence on the whole

subject.” He stated that the publication made him conscious of

race in a way he deplored because he had been taught to be

“color blind” and “considerate” in his dealings with all other

persons.

Moore testified: “I was seriously upset to have a man that I

disagreed with in public meetings go around behind me and put

into the University student newspaper such a malicious attack

on me, my character. This was done in front of my colleagues at

the University, students, black and white.” Describing his con-

cern that the item had been placed in the student newspaper as

opposed to some other publication, Moore said: “It was very

near home and concerned me very much indeed. I felt that he

had put a gap in my honor that could only be restored by

vindication of my fellow citizens on this jury.”

The evidence showed that during 1975 and 1976, a number of

racial concerns confronted the University. The school was try-

49a

ing to attract minority students and faculty. Tension had de-

veloped on campus because of the University President’s mem-

bership in an exclusive private club, Farmington, and there

were demands that he resign his office. The plaintiff proved

that publication of the advertisement in the midst of this tur-

moil adversely affected his teaching and his relationship with

his students of both races. Dr. Edgar F. Shannon, Jr., Presi-

dent of the University from 1959 to 1974, testified that the

perceived racial attitudes of a professor are important to his

relations with his students and materially affect the at-

mosphere in the classroom. Shannon indicated that he had

never known Moore to do or say anything degrading to black

persons or the black race.

Testimony showed that Moore was “very upset” by the pub-

lication and felt he had experienced “a terrible wrong.” The

evidence showed that other faculty members at the University

as well as students made repeated inquiries about Moore and

whether the statements in the item were true.

Summarizing the damage he suffered, Moore testified, “It’s

not an experience I would visit on most people. It’s very unhap-

py.” Moore said the humiliation had not lessened with the

passage of time: “It still stings. I still feel my honor has been

questioned, that’s not something you shrug off easily.”

Ordinarily, damage awards fixed by a jury following a prop-

erly conducted trial and approved by the trial judge are “held to

be inviolate against disturbance by the courts.” Smithey v.

Refining Company, 203 Va. 142, 145, 122 S.E.2d 872, 875

(1961). But, “[a] healthy administration of justice requires that,

in a proper case, the courts must take action to correct what

plainly appears to be an unfair verdict. This authority is an

ancient and accepted part of the common law.” Jd. at 146, 122

S.E.2d at 875. When there is a claim that the verdict is exces-

sive and it appears that the award is so out of proportion to the

damages sustained to suggest that it is not the product of a fair

and impartial decision, it becomes the duty of the court to

correct the injustice. Jd., 122 S.E.2d at 875-76. This is such a

case.

50a

We agree with the defendant that the amount of the award

bears no relationship to the loss actually sustained by the

plaintiff. Clearly, Moore suffered damage to his reputation,

embarrassment, humiliation, and mental suffering from this

defamatory publication made negligently. Nevertheless, the

verdict of $100,000 is so out of proportion to the damage sus-

tained as to be excessive as a matter of law. As the defendant

points out, Moore experienced no physical manifestation of any

emotional distress. Moreover, he sought no medical attention

for any condition resulting from the publication. In addition,

there was no evidence that Moore’s standing with his peers was

diminished as the result of the libel. Indeed, the evidence

shows that Moore’s acquaintances supported him; one indi-

cated that: “As far as I personally am concerned, . . . he lost

nothing.” Actually, the evidence showed that Moore continues

to be held in high esteem among his community of friends and

colleagues. Thus, we find that the amount of the verdict bears

no reasonable relation to the damages sustained and, there-

fore, is not supported by the evidence. Hence, the trial court

erred in refusing the post-trial motion to set aside the compen-

satory award as excessive. The court should have granted the

motion and then considered requiring the plaintiff to remit a

portion of the award or submit to a new trial under the provi-

sions of Code § 8.01-383.1.

Sectien 6 of Article VI of the Virginia Constitution, dealing

with the power of this Court upon reversal, modification, or

affirmance of a judgment below, provides, in part: “In any civil

case, [the Supreme Court] may enter final judgment, except

that the award in a suit or action for unliquidated damages shall

not be increased or diminished.” We have interpreted this sec-

tion: “The plain purpose of the provision is to leave to the

factfinding tribunal—the jury or the trial court sitting as a

jury—the function of fixing the amount of unliquidated

damages. It does not deprive this court of the authority to

remand the case to the lower court with direction that the

plaintiff be put upon terms to remit a portion of an award for

unliquidated damages or else submit to a new trial.” United

5la

Construction Workers v. Laburnum, 194 Va. 872, 900, 75

S.E.2d 694, 712 (1953), aff'd, 347 U.S. 656 (1954). Upon rehear-

ing of Bishop v. Webster, 154 Va. 771, 153 S.E. 832 (1930), the

Court said that “the power long exercised by this and all other

courts to put the plaintiff upon terms, and to allow him the

option of waiving a portion of his damages or have a new trial,”

is not affected or diminished “in the slightest degree” by the

foregoing constitutional section. 154 Va. at 787, 155 S.E. at

828. For a case in which this Court diminished a damage award,

see Lorillard v. Clay, 127 Va. 734, 760, 104 S.E. 384, 392-93

(1920), decided before the 1928 enactment of the forerunner to

the present constitutional provision. Acts 1928, ch. 205, p. 660.

Accordingly, we will reverse the compensatory award and

remand the case with direction to the trial court to require the

plaintiff to remit a substantial part of his recovery or else

submit to a new trial upon the issue of damages only.

Next, the defendant contends there was insufficient evi-

dence of actual malice to support the punitive award. We do not

agree.

We have made an independent examination of the record on

this issue to be certain that the judgement for punitive

damages does not constitute a forbidden intrusion on the field

of free expression. The trial court properly instructed the jury

that the plaintiff was required to establish New York Times

malice, that is, that Moore, by clear and convincing evidence,

had to prove that Fleming knew the statements were false or

that he made them, according to the instruction, “so recklessly

as to amount to a willful disregard for the truth. . . .”

We will assume without deciding that Fleming is correct in

his position that Moore failed to prove that Fleming knew the

defamatory statements were false. Nonetheless, there was

substantial, credible evidence to support the jury’s finding that

Fleming acted with recklessness that was tantamount to a

willful disregard for the truth.

On this point, Fleming argues that looking through his eyes

“at his world as it existed in January 1976. . . the only possible

————————————=« i

52a

conclusion is that [he] was not motivated by actual malice but

by genuine frustration.” But evaluation of this element of proof

must be from an objective standpoint, not merely from a sub-

jective perspective.

Fleming abandoned all judgment and reason in composing

and publishing the advertisement. For example, he accused

Moore of racial prejudice without possessing any objective

basis for the charge. Naming Moore in the publication, Flem-

ing demeaned him as being a tenured position-holder living off

the “public dole” at the expense of working people. There was

no evidence that Moore, or any other person in a similar oc-

cupation, was being supported to the prejudice of other groups

of citizens. There was no proof that Fleming had any legitimate

reason to believe Moore wished to deprive “working people” of

any opportunity. Fleming had no proper grounds to suppose

that Moore, as one of the so-called “no-growth people” was

oppressing other individuals. Fleming recklessly stated that

Moore’s opposition to the development on pollution grounds

was a “sham” to conceal his supposed real purpose, 7.e., oppres-

sion of black citizens and others who would live in the planned

community. Finally, Fleming’s act of publishing the advertise-

ment in the student newspaper on the campus where Moore

taught supports the conclusion that defendant’s motive was to

intimidate Moore in order to eliminate the voice of a leading

opponent to Fleming’s development.

Next, defendant contends the amount of the punitive award

shocks the conscience in that it bears no relationship to the

intended purpose of punitive damages, which is to punish the

defendant for his conduct and to serve as a warning to others

not to engage in similar activity. Defendant says the award of

$250,000, plus interest on that amount from January 16, 1976,

is unjust and establishes that the jury misconceived the law or

the facts or was actuated by passion and prejudice.

The independent examination we make on the punitive-

damage issue is not limited to proof of punitive liability. The

First Amendment implications flowing from the amount of

53a

such an award require the reviewing court to consider the

effect of approval of such an award on self-censorship in deroga-

tion of the right of free speech. Moreover, a jury verdict for

punitive damages cannot be allowed to work an injustice and

result in oppression. Stubbs v. Cowden, 179 Va. 190, 199, 18

S.E.2d 275, 280 (1942). Where a punitive award is substantially

in excess of what ordinarily might be expected as punishment

for the particular conduct, the reviewing court has a duty to

anull the award unless the circumstances are so egregious as to

constitute a sufficient punishment for the wrongful activity.

See id. at 200, 18 S.E.2d at 280. We hold that the amount of this

award, including the interest factor, constitutes a forbidden

intrusion on the exercise of free expression and that it is

substantially in excess of adequate punishment for defendant's

conduct.

Without question, as we have said, Fleming acted with actu-

al malice. Nevertheless, the punishment for this excessive

harangue is not merely punitive, it is destructive, even though

Fleming estimated his assets at close to one million dollars.

While the elements of compensatory damages differ from the

requirements to establish punitive damages, many factors ap-

ply to both on appeal. For example, the absence of physical

manifestation of Moore’s emotional distress must be consid-

ered. The fact of no substantial reduction in Moore’s standing

with his associates must not be overlooked. Indeed, Moore was

not charged with commission of a crime. The amount of

punitive damages awarded should bear some reasonable rela-

tionship to the actual damages sustained and to the measure of

punishment required; otherwise, the award on its face indi-

cates prejudice or partiality. Jd. at 201, 18S. E.2d at 280. This is

such an award and it cannot stand.

Consistent with our disposition of the compensatory award,

and on the same authority, we will reverse the punitive award,

with direction to the trial court to require the plaintiff to remit

a substantial part of his punitive recovery or else submit to a

new trial upon the issue of damages only.

—————— EE

54a

Because the main question regarding interest was not pre-

served properly in the trial court and because the interest issue

may not arise upon remand, we do not address that question. In

addition, we deny the plaintiffs motion to dismiss.

For these reasons,the judgment below will be affirmed, in

part, reversed, in part, and remanded for further proceedings

consistent with this opinion.

Record No. 830758—A/ffirmed.

Record No. 830526—A/ffirmed.

Record No. 830651—A/ffirmed, in part,

reversed, in part,

and final judgment.

Record No. 831446—Affirmed, in part,

reversed, in part,

and remanded.

Poff, J. concurring in part and dissenting in part. Harrison,

Retired Justice, concurring in part and dissenting in part.

THE GAZETTE, INC.

v. Record No. 830758

JAMES WILLIAM HARRIS, et al.

CHARLOTTESVILLE NEWSPAPERS, INC.

v. Record No. 830526

DEBRA C. MATTHEWS

PORT PACKET CORPORATION

v. Record No. 830651

E. GREY LEWIS, et al.

Harrison, Retired Justice, concurring in part and dissenting in

part. y

The opinion of the majority finds precedential support in

eases decided by this and several other state courts. I agree

that in each of the cases under review the defendant failed to

exercise ordinary care and therefore acted negligently. This

dissent stems from my disagreement with the Court’s refusal

to adopt in defamation cases as a matter of state law a stricter

standard than that of ordinary negligence. Ordinary care is

that care which is commensurate with the occasion. It is not

absolute or intrinsic. It is always relative to some circum-

stances of time, place, manner, or person and becomes a ques-

tion of fact to be decided by a jury.

Juries are randomly selected, and the principal criteria for

service thereon is not to be a felon, not under age eighteen, and

not unable to communicate in the English language. Present-

day juries often return verdicts that are completely out of

proportion to the harm done. The verdicts under review are no

exception. Trial judges are reluctant to disturb the verdict of a

jury. Appellate courts are equally as reluctant to sustain a trial

court when it does take such action.

acs seman REET OAS ARTS PEI IR

56a

I do not concur in the suggestion that a gross negligence

standard be adopted. The distinction between gross and ordi-

nary negligence is too vague and shadowy to be of any practical

importance. The difficulty that courts and juries had in making

this distinction in motor vehicle accident cases caused the

General Assembly to abolish the gross negligence standard in

guest cases. Virginia Code § 8.01-63. I have no reason to be-

lieve that a jury or a court would find it any easier to make the

distinction in defamation cases.

I would adopt the New York Times standard which permits

the recovery of compensatory damages for a defamatory state-

ment only when such statement is made with knowledge that it

is false or is made with reckless disregard of whether it was

false or not. And I would make the same standard applicable to

the media and non-media defendants. Any lesser standard will

inevitably have a chilling effect on free speech and the free

press and will erode the safeguards protected by the Constitu-

tions of the United States and Virginia.

The majority opinion does limit the application of the negli-

gent standard by requiring a trial judge to find as a matter of

law that the defamatory statement “makes substantial danger

to reputation apparent.” Although I approve the limitation, I

fear that it will prove in practice to be one of form rather than

_substance. What is defamatory and when it is harmful are

questions of fact. Judges will be just as hesitant to “take a case

away” from the trier of the facts as they now are to set aside the

verdict of a jury once it has been rendered.

Because I am of opinion that the defendants in The Gazette,

Inc., Charlottesville Newspapers, Inc., and Port Packet Cor-

poration were guilty of simple negligence only, a standard

which I would not adopt, I dissent from the decision affirming

the compensatory-damage awards in the cases. I concur in the

action of the majority in reversing the punitive-damage award

in the Port Packet case. I did not participate in Fleming.

57a

THE GAZETTE, INC.

v. Record No.

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