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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 473 U.S. 905

## Text

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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i iin as Cee chi oe bebwecdiewews
SI 655 rr leis bo. a bs bods Civ acd i oeeilies
a rr re ee ere
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 “shar, nead of the day care center at 1501 Cameron
Street, Alexandria, said the children left with Mobley on Fri-
day, April 25 “in good condition.” But she insisted Majors and
Mobley had entered into a private weekend babysitting agree-
ment. “I really believe that there’s no question so far as the
school being responsible,” she said in an interview in early
June. “It was a private arrangement.”

Mobley is no longer employed by Head Start.

Amid all the complexities, inconsistencies and disagree-
ments in the case, one fact is left unchallenged; the children
were assaulted. Asia displayed the more severe injuries.

“Whoever's at fault,” said Hellner, “the child has suffered.”

Photographs of Asia taken on April 28, two days after two
separate assaults were said to have occurred, show the child to
have severe bruising across the buttocks, right leg and shoul-
der as well as a black eye and a small gash in one leg.

“A spanking never hurt anybody,” said Majors, “but that’s
not a spanking.”

“I think no one knows exactly what happened,” commented
Hellner. “We do know the children came back injured and I
think that’s very, very, painful for everyone concerned.”

The case points to the difficulty authorities face in securing
convictions in instances of child beating.

64a

State prosecutors sought indictments against John and Car-
oline Courtney after their infant daughter, Anna L. Griffin, in
November of 1978 died from a fractured skull. A grand jury
refused to indict the couple, who lived on the 5300 block of
Duke Street, for lack of evidence. Investigators regard the
case as one of Alexandria’s unsolved homicides.

“You either have victims who can’t talk to you or what they
tell you is questionable because they are two or five years old,”
said Sgt. Ron Uhrig, head of the Alexandria Police Depart-
ment’s youth services unit.

“When your victims are two, three, five years old they can’t
communicate,” he said.

“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,” he added. Under U.S. law, a spouse cannot be compelled to
give evidence against the marital partner.

“You're at a dead end,” commented Uhrig. :

Next: Child abuse, a vicious circle?

65a

Advices from the Packet Bridge

CHILD ABUSE

Today’s lead story on Page 1 is painful in the extreme. Child
abuse is a subject so unpleasant that the mind often chooses not
to deal with its details. Yet deal with it we must, for it is among
us and is killing some of our children.

The difficulties of proving the charges, the problems of wit-
nesses who are young and often badly frightened make this
problem seem beyond solution, at least at times.

Virginia already has a law requiring school, health, welfare
and law enforcement professionals to report cases of suspected
child abuse. That base is covered. It is first necessary to learn
about a case of child abuse before it can be stopped.

The increases in the number of cases locally is chilling. It is
something to be watched, just as medical authorities watch for
changes in disease rates.

We get the impression from the professionals that they are
pretty much on the watch for child abuse cases. Yet the crime,
in many cases ends up being only a misdemeanor. Few if any
newspapers have the resources to cover misdemeanor cases in
the courts on a regular basis.

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 was part of the act.

Could it work?

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0166%3A1. Public record. Not legal advice.