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

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

94-1723

MAY 2

: | ALEXANDER L. STEVAS,

—s

/ Office-Supreme Court, US.

rite @

1985

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1984

E. GREY LEWIS and CAROLYN G. LEWIS,

Petitioners,

PORT PACKET CORPORATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

WILLIAM B. CUMMINGS *

WILLIAM B. CUMMINGS, P.C.

112 S. Pitt Street

P.O. Box 1177

Alexandria, Virginia 22313

(703) 836-7997

Attorneys for Petitioners

Of Counsel:

MICHAEL P. MCDONALD

AMERICAN LEGAL FOUNDATION

1705 N Street, N.W.

Suite 300

Washington, D.C. 20036

(202) 857-0400

* Counsel of Record

May 2, 1985

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

The Virginia Supreme Court reversed a jury award of

$100,000 in punitive damages against a newspaper that

had published a libelous story on child abuse in which the

parents of a nine-month-old boy, who died accidentally

from a fall, were falsely accused of having murdered

their son.

1. Does the Constitution require that actual malice

be proven by “clear and convincing” evidence in order to

sustain an award of punitive damages against a media

defendant in a private figure defamation action?

2. Did the Supreme Court of Virginia misapply this

Court’s holding in Bose Corp. v. Consumers Union by

conducting an independent review of the factual deter-

minations underlying the jury’s finding of actual malice,

rather than limiting its review to the ultimate conclusion

of actual malice reached by the jury in awarding puni-

tive damages?

3. Did the Supreme Court of Virginia err in reversing

the jury’s award of punitive damages for want of “clear

and convincing” proof of actual malice when the cumula-

tion of circumstantial evidence relied upon by plaintiffs

to prove that the defendant acted with “reckless disre-

gard for the truth” clearly established that:

—The newspaper deliberately fabricated portions of

the defamatory story;

—The newspaper knew of the harm that would likely

result from publication of the defamatory story;

—The defamatory information published by the

newspaper was contradicted by the newspaper’s

own sources for the story;

—The newspaper’s editor deliberately penned a false

headline;

(i)

—The newspaper suppressed information favorable

to the parents;

—The newspaper resolved ambiguities in the story

in the light most damaging to the parents;

—The newspaper was under no time constraints in

preparing the story;

—The newspaper’s investigation of the circumstances

surrounding the accidental death of the parent’s

child was cursory; and

—Expert testimony received by the jury at trial con-

vincingly established that the newspaper had vio-

lated proper journalistic standards in publishing

the defamatory article at issue?

PARTIES

All parties are listed in the caption.

TABLE OF CONTENTS

Page

op sy GB yo | ccna (i)

SIE ET INT TI atknnctcssesnctnscnatecsscsocesiscssnsnnen v

ice w i iaseeegmenncnesicenmmneentin 1

aN SS ce Aaa we 2

CONSTITUTIONAL AND STATUTORY PROVI-

I nn cacanedece 2

STATEMENT OF THE CASE ....WW.022.2....22..---.-.0-s0-0--- 2

REASONS FOR GRANTING THE WRIT ................... 13

I. THE CASE PRESENTS AN IMPORTANT

QUESTION OF CONSTITUTIONAL LAW

NOT YET SETTLED BY THIS COURT ........... 13

A. Gertz v. Robert Welch, Inc. Left Unresolved

Whether Private Figure Libel Plaintiffs Must

Prove Actual Malice By “Clear and Convinc-

ing” or Simply “A Preponderance” of the

Evidence In Order to Support an Award of

I iis isa cserctharnknentnedibigibentto 13

1. Gertz’s Treatment of Punitive Damages

in the Private Figure Context is Am-

NESE SRR SST IREESE Rea 14

2. Policy Considerations Discussed in Gertz

Convincingly Demonstrate That a Pre

ponderance of the Evidence Standard is

Fully Compatible with First Amendment

SEI SEAS DEES AILS Se eo eC Sr Snr 15

B. Lower Courts Are Divided As To Whether

Actual Malice Must Be Proven By “Clear and

Convincing” or “A Preponderance” of the

Evidence In Order To Support an Award of

Punitive Damages After Gertz _..................... 18

(iii)

TABLE OF CONTENTS—Continued

Page

ll. THE DECISION BELOW IS IN CONFLICT

WITH APPLICABLE LIBEL DECISIONS OF

Se IN heinseriithincidcniererniccemnidiinntlibbicipies 21

A. The Supreme Court of Virginia Misapplied

This Court’s Holding in Bose Corp. v. Con-

sumers Union by Conducting An Independ-

ent Review of the Factual Determinations

Underlying th2 Jury’s Finding of Actual

Malice, Rather than Limiting its Review to

the Ultimate Conclusion of Actual Malice...... 21

B. The Supreme Court of Virginia Ignored

Relevant Libel Decisions of this Court Bear-

ing on Proof of the Reckless Disregard Com-

ponent of Actual Malice _...........222. ee. 24

FT IITEN Aisitonecsichanjeninipeaesnieipacanapiiaiaamntgaanintenhieteninn 28

TABLE OF AUTHORITIES

Cases: Page

Bose Corp. v. Consumers Union, 52 U.S.L.W. 4513

(U.S. Apr. 30, 1984) (No. 82-1246)................ 10, passim

Curtis Publishing Co. v. Butts, 388 U.S. 130

(bg SMEs eens linden ea NE Testa Pe aR 24, 26

Fitzgerald v. Penthouse Int'l, Ltd., 525 F. Supp.

Bs SRA REECE (eR One Papeete 19

Garrison v. Louisiana, 379 U.S. 64 (1964) ............... 24

General Products Co. v. Meredith Corp., 526

, Be. Cas. Wie I itcectentcrcriceiccenccennss 19, 20

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)... 13,

passim

Golden Bear Distributing Systems of Texas v.

Chase Revel, Inc., 708 F.2d 944 (5th Cir. 1983)... 26

Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.

1969), cert. denied, 396 U.S. 1049 (1970) _........... 26

Indianapolis Newspapers, Inc. v. Fields, 259 N.E.2d

651, cert. denied, 400 U.S. 930 (1970)................. 26

Levine v. CMP Publications, Inc., 738 F.2d 660 (5th

Re I ce a 22

Marcone v. Penthouse Int’l, Ltd., 577 F.Supp. 318

Se I, ion schepaeomntmonkvntapaneiidsemnianaaiitns 18, 20

Meadows v. Taft Broadcasting Co., 470 N.Y.S.2d

I Se I: SIT innsisoncsnnddesasitcianetnamaniabaltinatiiigiess 19

Miller v. Lear Siegler, Inc., 525 F.Supp. 46

SOUPS II ssh cscn sischacanineneeictdiretisdieteseliamamldesiiaaieaie 19

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

| SEEN EGE Oe CoP ma OO Re APEC EEN Fe 12, passim

Pirre v. Printing Developments, Inc., 468 F.Supp.

BD Ces Se eich iteniincsitestcitetanenanathntiins 18, 19

Rimmer v. Colt Industries Operating Corp., 656

¢ © ot ERR ee eee ence 18

Rosenblatt v. Baer, 383 U.S. 75 (1966) -................. 17

Rosenbloom v. Metromedia, Inc., 403 U.S. 29

I icici sg i, 26

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

674 (W.Va.), cert. denied, 423 U.S. 882 (1975).. 25

St. Amant v. Thompson, 390 U.S. 727 (1968) ....24, 25, 26

Tavoulareas v. Washington Post, No. 83-1605, slip

GR, COR. COR, BAUER Dy ROD ice etta secnrcesacenannnsins 23, 26

Time, Inc. v. Pape, 401 U.S. 279 (1971) .................. 26

Other Authorities: Page

Comment, The Constitutionality of Punitive Dam-

ages in Libel Actions, 45 Ford.L.Rev. 1382

(1977) ....... ERS, ASE RER EL RES ET Oe ei TES Ne 17

Goodale, Communications Law 1984 (Vol. 2,

PSE RE A LE EY a ee ee 18

Holmes, The Common Law (1881) ........................... 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No.

E. Grey LEWIs and CAROLYN G. LEwIs,

Petitioners,

Vv.

PorRT PACKET CORPORATION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Petitioners, E. Grey Lewis and Carolyn G. Lewis, re-

spectfully pray that a writ of certiorari issue to review

the judgment and opinion of the Supreme Court of Vir-

ginia entered in this defamation action on February 1,

1985.

OPINION BELOW

The opinion of the Supreme Court of Virginia in this

case also decided three other libel appeals. It is reported

at Va. ——, 325 S.E.2d 713 (1985) sub nomine The

Gazette, Inc. v. James William Harris. It appears in its

entirety in the Joint Appendix to this proceeding. [Here-

after cited as J.A.]. The Joint Appendix is being filed

this same day by respondent in its cross petition for writ

of certiorari.

JURISDICTION

This case was decided and judgment was entered by

the Supreme Court of Virginia on February 1, 1985.

This petition for certiorari is filed within 90 days of that

date. This Court’s jurisdiction is properly invoked under

28 U.S.C. 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

1. First Amendment, United States Constitution:

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

of speech, or of the press... .”

2. Fourteenth Amendment, Section 1, United States

Constitution: “[{NJor shall any state deprive any person

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

STATEMENT OF THE CASE

Preliminary Statement

This is an action for libel by two private figures, E.

Grey Lewis and Carolyn G. Lewis, against the Port

Packet Corporation (“Port Packet”), publisher of The

Alexandria Port Packet, a weekly newspaper circulated

in Alexandria, Virginia. The action was brought in the

state courts of Virginia and was tried before a jury.

Following a four day trial, the jury returned a verdict

for the Lewises in the amount of $50,000.00 compensa-

tory damages and $100,000.00 punitive damages. After

reviewing the relevant authorities, the instructions and

the evidence, the trial court judge found that there was

sufficient evidence to support the jury’s verdict, both as

to compensatory and punitive damages.

On appeal, the Supreme Court of Virginia affirmed the

jury award of compensatory damages after finding the

Port Packet’s conduct to have been negligent. However

it reversed the jury’s award of punitive damages. Only

that portion of the Virginia Supreme Court’s opinion

bearing upon the question of punitive damages is at issue

in this petition.

Background Facts '

Grey and Carolyn Lewis are residents of Alexandria,

Virginia. On June 10, 1980, the Lewises’ nine-month old

son was seriously injured when he accidentally fell from

a bed in the Lewises’ home. Although the Lewises rushed

the baby to Alexandria Hospital, he died two days iater

from head injuries sustained in the fall. J.A. at 32a.

Subsequently, the Alexandria Child Protective Services

Unit and the Alexandria Police Department investigated

the child’s death as required by Virginia law. It was

ruled accidental and the police officially closed their in-

vestigation of this tragic affair on July 28, 1980. Id.

The News Story at Issue

On July 16, 1980, while the Alexandria police investi-

gation of the accidental death of the Lewises’ nine-month

old son was still continuing, the Port Packet published

the first of a two-part series of articles on the subject of

child abuse in the Alexandria community. The article

which is the main subject of this case was headlined:

“2 TOTS DIE AS CHILD ABUSE CLIMBS.” It was

written by Port Packet reporter Adrian Higgins. J.A.

at 60a-64a.

The first four paragraphs of this article provide the

reader with the following information:

1In presenting all the facts of this case, petitioners rely on

the Virginia Supreme Court’s recitation of the facts, J.A. at

3la-44a, and also on the complete trial record contained in the joint

appendix to this case when it was before the Virginia Supreme

Court. To avoid confusion, references to the complete trial record

set out in the joint appendix relied upon by the lower court will be

cited as “Record.”

“Early in June, nine-month-old Mark fought for his

short life after receiving head injuries in what po-

lice believe was a vicious attack on the infant.

Mark lost his fight.

“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

returned to a city day care center after a weekend

spent with her teacher’s aide displaying signs of a

severe beating. 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’s fastest

growing social problems: child beating.”

J.A. at 32a-33a.

In succeeding paragraphs Higgins cited statistics on

the growing incidence of child abuse in Alexandria and

provided commentary to the effect that parents were

largely responsible for this increase.

The specific child abuse cases reported in the article’s

lead paragraph were then further detailed. Specifically,

the Port Packet reported:

“Denied even the pains of childhood, nine-month-old

Mark (not his real name) received a fractured skull

during the first week of June and was taken to

Alexandria Hospital 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 sup-

port systems in a futile attempt to revive him, Rob-

ert was declared medically dead two weeks later.

Based on autopsy reports, Alexandria police inves-

tigators are also treating Robert’s death as a mur-

der.”

J.A. at 33a-34a.

Higgins then concluded the article by returning to the

theme that parental abuse was the leading cause of this

problem. An Alexandria police sergeant, Ronald Urhig,

was quoted as saying that the biggest problem police had

in obtaining more convictions in child abuse cases was

that, ‘“‘you have two parents [of an abused child] and one

won’t testify against the other and doesn’t have to.” J.A.

at 34a.

The same edition of the Port Packet carried a second

article on this subject. Headlined “CHILD ABUSE,” the

article was an editorial written by the paper’s editor call-

ing for a public crusade against parental child abusers.

J.A. at 34a; 65a. Relying on the purported facts set out

in Higgins’ page-one lead article, the editorial stated that

it was necessary for the public and police to learn more

about child abusers in order to prevent the crime. As a

“solution” to the problem, the editorial proposed the

following:

“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?”

Id.

In April of 1981 the Lewises filed suit against the

Port Packet for libel. They contended that even though

a fictitious name had been used, the details provided in

Higgins’ article about “Mark’s” death were sufficiently

specific to enable an ordinary reader in the Alexandria

community to be able to identify their son. Accordingly,

the Lewises charged that they had been falsely accused

bythe paper of being child abusers who had murdered

their son. Both compensatory and punitive damages were

sought as a means of vindicating the injury to their repu-

tations and punishing the newspaper’s allegedly reckless

conduct.

The Trial

A number of issues were presented to the jury for res-

olution at trial.2 Moreover the case raised questions of

first impression for the State of Virginia post-Gertz.*

However only one issue is of relevance to the instant peti-

tion, namely, whether the evidence of actual malice in-

troduced at trial was sufficient under either a clear and

convincing * or a preponderance of the evidence standard

to sustain an award of punitive damage against the Port

Packet. An examination of this evidence is therefore

necessary.

It was established at trial that the original draft of

the child abuse article concerned the case of an Alex-

andria child whose mother had accused a teacher’s aide

of abusing her daughter. Port Packet reporter Adrian

Higgins investigated the incident, but he and Port Packet

editor/publisher James Coldsmith decided that, because

of charges and countercharges, the article had lost much

of its newsworthiness, i.e., it was too “unwieldly.” Record

at 294. Higgins and Coldsmith were frustrated that two

2 Such issues included: whether there was sufficient identification

of the Lewises in the offending article to form a basis for an

action of libel; whether the article was both false and defamatory;

whether the paper breached any standard of care owed the Lewises;

and, if so, whether the newspaper acted negligently and/or with

actual malice.

3 E.g., what standard of liability should govern an award of com-

pensatory and punitive damages in a private figure libel action and

what the appropriate scope of appellate review should be.

4 The jury was instructed under a clear and convincing standard

of proof.

months of investigation had been for naught. Record at

887. They decided to broaden the article to deal with the

general problem of child abuse and set about finding evi-

dence of this problem for their story. J.A. at 34a-35a.

As part of his general background work on child abuse,

Higgins interviewed Ms. Francine Rosenfeld, then head

of the Child Protective Services Unit of the Alexandria

Social Services, the agency charged with the investiga-

tion of child abuse cases. But in response to a direct

question from Higgins, Rosenfeld informed him that there

had been no child abuse deaths in the City of Alexandria

in recent months. Record at 473.

Shortly after speaking with Rosenfeld, Higgins con-

tacted Sgt. Ron Uhrig, then Commander of the Youth

Services Division of the Alexandria Police Department.

Record at 297. Uhrig told Higgins that the police depart-

ment was investigating the death of a nine-month-old

male, who died of a skull fracture not consistent with a

normal fall in early June at Alexandria Hospital, two

days after the injury. Uhrig told Higgins that the case

was classified as a suspicious death and that it was being

investigated procedurally as a homicide. But equally im-

portant is what Sgt. Uhrig did not tell Higgins: that

anyone at the police department believed the baby had

been viciously attacked; that the death was being treated

as a murder; or that the child had died of a result of

child abuse. J.A. at 35a.

Higgins obviously ignored Rosenfeld’s statement that

no children had died as a result of child abuse and made

no attempt to contact her further to verify or challenge

her statements. Record at 315. Instead, he contacted As-

sistant Commonwealth’s Attorney Randolph Sengel to fur-

ther discuss the facts surrounding the death of the nine-

month-old boy. Sengel likewise told Higgins that this case

was procedurally labelled a “suspicious death,” that the

result could well have been accidental, and that the case

was not at the time classified as a child abuse case. Ree-

ord at 421, 423. One of petitioners’ two expert witnesses

described Sengel’s message to Higgins as a “flashing

yellow light” to either delete the “Mark” incident from

the planned story or to delay publication to conduct fur-

ther investigation. Record at 532.

Evidence was also introduced at trial sufficient to es-

tablish that Higgins: did not attempt to speak to the

investigating officer involved in the Lewis child’s death,

Record at 315; attempt to reconcile Ms. Rosenfeld’s state-

ment with Set. Uhrig’s, Record at 315; check autopsy

reports, police reports, or hospital records, Record at 316-

317; check recent obituaries to ascertain the identity of

the child, Record at 317; and did not call Sgt. Uhrig be-

tween July 9 and July 16, Record at 312, although the

actual investigating officer in this case testified that on

July 9 he received information from the Medical Ex-

aminer that the injuries were consistent with a fall and

relayed this information to Uhrig on or about the same

date. Record at 798.

In the course of writing the story the evidence also

established that Higgins: fabricated the words “vicious

attack” and falsely attributed them to a police source,

J.A. at 35a; included the incident in a child abuse article

after being told by the prosecutor (his second direct

source) that it was not a child abuse case, Record at 423;

ignored all negative sources and improperly expanded the

words of his only neutral source (Uhrig) in order to be

more graphic, Record at 454; and did not use the words

“suspicious death,” “procedural classification,” or “pos-

sible accident” in his article, Record at 197-198.

During the trial both Mr. and Mrs. Lewis submitted

evidence of the devastating effect publication of the arti-

cle had had upon them. Carolyn Lewis testified that she

was frightened, lost sleep, and had horrible stomach

aches. J.A. at 42a. Mrs. Lewis recalled one occasion

in a local supermarket when an acquaintance turned her

back to Mrs. Lewis. J.A. at 4la. Mrs. Lewis was aware

that the article had been discussed at social events, and

thus limited their social life. Jd. Further, Mrs. Lewis

felt she had been stripped of the ability to discipline her

young daughter for fear neighbors would think the child

was being abused. Id.

Mr. Grey Lewis, an attorney practicing in nearby

Washington, D.C., felt isolated after the article appeared.

A long-time resident of “Old Town” Alexandria, he with-

drew from social events and avoided bar functions as a

result of the article. J.A. at 42a. He felt awkward,

humiliated, and afraid that everyone believed he had

viciously attacked his own baby. Jd. He noticed that

the outpouring of support his friends had given him

after the baby’s death had stopped after the article ap-

peared. Record at 666. Coming so soon after his son’s

death, he stated that the accusations in the article felt

like someone had stuck a knife in an open wound and

twisted it. Record at 662. Mr. Lewis feels that his pub-

lic service career has ended since an Administration

_ would consider him “carrying baggage”—the suspicion

that he abused his child to death. J.A. at 42a.

In addition to receiving this evidence of damages sus-

tained by the Lewises, the jury was also provided with

an opportunity to assess the credibility, motive and intent

of Port Packet reporter Higgins and editor/publisher

Coldsmith. Both men took the stand and were examined

at iength concerning whether there were serious doubts

about the truth of portions of the article prior to its

publication. J.A. at 35a; 40a.

Finally, the jury also heard and considered expert tes-

timony on the standard of care exercised by the Port

Packet in publishing the article at issue. Joseph Tinkel-

man, a journalism professor at American University and

Charles Seib, who spent forty years in the newspaper

business, culminating in the prestigious roles of manag-

ing editor of the Washington Star and ombudsman for

The Washington Post, testified. Both men explained to

the jury the standards of professional journalism in Alex-

andria, Virginia and how, in their opinions, the Port

Packet violated these standards. Each witness went on

to testify that the conduct of Higgins and Coldsmith

transcended a failure to adhere to these journalistic

standards and reached the level of obvious awareness of

falsity.

Following the introduction of this evidence, the jury

was instructed on the standard of proof prerequisite to

an award of compensatory and/or punitive damages.

They returned a verdict of $50,000.00 compensatory and

$100,000.00 punitive damages. The evidence and awards

were then separately reviewed by the trial court judge.

He found the totality of circumstantial evidence bearing

upon the Port Packet’s intent in publishing the article

to be sufficient to prove both negligence and “reckless

disregard” actual malice for purposes of the punitive

damage award. He also found the damage awards to be

reasonable in light of the fact that two plaintiffs had

sued. Accordingly, the jury verdict and awards were

sustained. J.A. at 32a.

The Decision of the Virginia Supreme Court

The newspaper appealed the adverse jury award of

compensatory and punitive damages to the Supreme

Court of Virginia. All issues concerning identification of

the Lewises in the article, the false and defamatory

nature of the article, proof of harm to the Lewises’ repu-

tations and negligence in publication were again resolved

against the newspaper. Accordingly, the award of com-

pensatory damages was affirmed. J.A. at 41a.

However on the issue of punitive damages, the Court

below held that this Court’s recent decision in Bose Corp.

v. Consumers Union required it to conduct an independ-

ent review of the evidence in the record on appeal in or-

der to decide whether the evidence supported a finding

of “actual malice.” J.A. at 16a; 43a. The Virginia Su-

preme Court immediately qualified this holding as fol-

lows:

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 presump-

tion of correctness that attaches to factual findings

is to be discounted.

J.A. at 16a.

Despite the stated limitation on the scope of its re-

viewing power, when the Virginia Supreme Court ac-

tually undertook its independent examination of the evi-

dence it questioned the jury’s preliminary factual deter-

minations and declined to draw all reasonable inferences

in favor of its verdict.

Thus, where the jury found that the newspaper had

acted in reckless disregard of the truth in publishing the

article without adequately researching it, the Supreme

Court of Virginia, after its de novo review of the evi-

dence, found that “the articles were researched in depth.”

J.A. at 43a.

Similarly, where the jury had found that the defama-

tory articles had been recklessly assembled and edited,

the lower court’s findings on the same evidence were

again to the contrary: “The articles were edited in a

deliberate fashion with consideration given to accuracy.”

Id.

The most telling indication of the sweep of the Su-

preme Court of Virginia’s review was its de novo find-

ing on the question of the Port Packet editor’s credibil-

ity. In finding for the Lewises on the issue of actual

malice, the jury carefully assessed Coldsmith’s credibility

when he was on the stand. It concluded that Coldsmith

acted recklessly by failing to comply with the standards

of proper journalism when he published the article. The

Supreme Court of Virginia, with nothing but the cold

record to rely on, specifically found to the contrary. “The

editor approved the article for publication believing it

complied with standards of proper journalism.” Jd.

Not only did the lower court eviscerate the factfinding

role of the jury on appeal, but it also held, as a matter

of federal constitutional law, that the First Amendment

required actual malice in a defamation action to be

proven by “clear and convincing” evidence. J.A. at 16a.

The court found this to be the case even if the plaintiffs

in the action, as here, were private rather than public

figures.

In fact, the court explicitly refused to consider whether

the private figure status of the Lewises entitled them to

a lower evidentiary standard, such as a mere preponder-

ance, in proving actual malice. Jd. For the court, the

fact that punitive damages must be proven by “actual

malice” automatically required a standard of clear and

convincing proof. “[O]n the issue of punitive dam-

ages . . . the evidence in the record on appeal [must

be] sufficient to support a finding of New York Times

‘actual malice’ by clear and convincing proof.” J.A. at

l6a; 43a.

Thus in conducting its independent review of the evi-

dence in the record on appeal, the court not only refound

several of the jury’s factual determinations, but also held

that whatever circumstantial evidence of malice did exist

was insufficient “to clearly and convincingly prove the

defendant made the statements knowing they were false

or made them so recklessly as to amount to a willful dis-

regard for the facts.” J.A. at 43a.

Finally the court suggested that the editor’s assertion

that he believed publication of the defamatory article had

met proper journalistic standards, coupled with the fact

that neither the reporter nor the editor on the story con-

fessed to having had actual doubts regarding the truth-

fulness of the articles, were sufficient to prove lack of

actual malice. Jd. The court expressly declined to accept

petitioner’s argument that the web of circumstantial

evidence introduced at trial was sufficient to demonstrate

actual malice recklessness.

For all these reasons the Supreme Court of Virginia

reversed the jury judgment as to the — damage

award. J.A. at 44a.

REASONS FOR GRANTING THE WRIT

I. THE CASE PRESENTS AN IMPORTANT QUES-

TION OF CONSTITUTIONAL LAW NOT YET SET-

TLED BY THIS COURT.

A. Gertz v. Robert Welch, Inc. Left Unresolved

Whether Private Figure Libel Plaintiffs Must Prove

Actual Malice by “Clear and Convincing” or Simply

“A Preponderance” of the Evidence In Order to

Support an Award oi Punitive Damages.

The Supreme Court of Virginia explicitly relied upon

this Court’s holding in Gertz v. Robert Welch, Inc., 418

U.S. 323 (1974) as support for the remarkable proposi-

tion that: “all persons, public or private, may recover

presumed or punitive damages only upon clear and con-

vineing proof of New York Times malice.” J.A. at 6a

(emphasis added). But the Virginia Supreme Court’s

reliance on Gertz for the creation of this new rule of

federal constitutional law is misplaced. Gertz left unre-

solved the fundamentally important question as to

whether actual malice, in the punitive damages context,

must always be proven by clear and convincing evidence

regardless of the private figure status of the libel plain-

tiffs.

Moreover the policy considerations articulated in Gertz

as valid reasons for allowing the states wide latitude in

protecting the reputational interests of private citizens,

counsel just the opposite result. Employing a lower “pre-

ponderance of the evidence” standard to judge the suffi-

ciency of actual malice evidence where a private figure

plaintiff seeks an award of punitive damages would be

consistent both with the First Amendment and the repu-

tational interests at stake. The Virginia Supreme Court

was simply wrong to conclude otherwise.

1. Gertz’s Treatment of Punitive Damages in the

Private Figure Context is Ambiguous.

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

posed constitutional limitations on the recovery of dam-

ages by private individuals in defamation actions. The

issue of what these limitations are in the context of puni-

tive damage awards is briefly treated in two places.

First the Court established as a rule of federal constitu-

tional law that: “the States may not permit recovery of

presumed or punitive damages, at least when liability is

not based on a showing of knowledge of falsity or reck-

less disregard for the truth.” 418 U.S. at 349. Second,

after discussing the dangers of uncontrolled punitive

damage awards, the Court reiterated this holding in

somewhat different fashion: “In short, the private def-

amation plaintiff who establishes liability under a less

demanding standard than that stated by [New York

Times v. Sullivan] may recover only such damages as are

sufficient to compensate him for actual injury.” 418

U.S. at 350.

Clearly then, this Court’s decision in Gertz adopts the

actual malice standard of conduct set forth in the land-

mark Sullivan case as a predicate to the award of puni-

tive damages in a private figure libel action. Petitioners

do not challenge the Virginia Supreme Court’s reading of

Gertz to this limited extent.

The fundamental question Gertz leaves unresolved, and

what petitioners are challenging through this application

for certiorari, is the notion that Gertz and, by extension,

the First Amendment to the Constitution, explicitly man-

date only a clear and convincing standard of proof in

private figure defamation actions on the question of

punitive damages.°

Petitioners are unaware of any decisions of this Court

subsequent to Gertz which have resolved, let alone ad-

dressed, this substantial federal question. It thus ap-

pears to be one of first impression. For the Supreme

Court of Virginia to have mistakenly assumed that it

was constitutionally compelled to erect a clear and con-

vineing standard of proof in private figure libel actions

thus warrants immediate review and correction by this

Court.

2. Policy Considerations Discussed in Gertz Con-

vincingly Demonstrate That a Preponderance of

the Evidence Standard is Fully Compatible with

First Amendment Interests.

In New York Times Co. v. Sullivan, 376 U.S. 254

(1964), this Court linked the actual malice intent re-

quirement to a clear and convincing standard of proof.

However this holding clearly occurred in the context of a

public figure defamation action. Subsequently, in Gertz,

the Court required private figure plaintiffs to prove ac-

tual malice in order to recover punitive damages. It was

completely silent, however, on the proper evidentiary

standard of proof required, i.e., “clear and convincing”

or “a mere preponderance” of the evidence.

In resolving this ambiguity, the Supreme Court of

Virginia reasoned that because actual malice is always

proven by clear and convincing evidence in the public

figure context, the Court in Gertz must have meant to

require the same standard of proof when it established

an actual malice burden in the private figure/punitive

damages setting. But the policy considerations discussed

in Gertz to allow states greater latitude to protect pri-

5 Petitioners accept that in public figure cases, actual malice

must always be proven by clear and convincing evidence as Gertz

explicitly held. Gertz, 418 U.S. at 342.

vate figure reputations would appear to counsel just the

opposite result.

In Gertz the Court established a fundamental distinc-

tion between public and private figures for purposes of

defamation law. Whereas,

the communications media are entitled to act on the

assumption that public officials and public figures

have voluntarily exposed themselves to increased

risk of injury from defamatory falsehood concern-

ing them . . . . [n]o such assumption is justified

with respect to a private individual .... He has

relinquished no part of his interest in the protection

of his good name, and consequently has a more com-

pelling call on the courts for redress of injury ....

Thus, private individuals are not only more vulner-

able to injury than public officials and public figures,

they are also more deserving of recovery.

Gertz, 418 U.S. at 345.

It was for these reasons that the Court concluded the

First Amendment’s limitations with respect to damage

awards should not be as extensive when private figures

were involved. Accordingly, the Court emphasized that

the states had a “strong and legitimate . . . interest in

compensating private individuals for injury to reputa-

tion... .” Id. at 348-49. The state’s interest in compen-

sating private individuals was limited, however, when it

caine to punitive damages. Jd. at 349. There the Court

required actual malice be proven. This requirement in

itself represents a significant accommodation of the

state’s interest in punishing and deterring wrongful con-

duct to First Amendment values. In light of the limited

means available to a private figure to redress injury to

reputation, it is clearly excessive to hold as a matter of

federal constitutional law that all private figures must

meet the actual malice test by a clear and convincing

standard.

a le Ai

Simply put, the states must be allowed wider discre-

tion under the Constitution to deter defamation in the

case of private figures who have surrendered none of

their right to personal privacy by entering public life and

who are not involved in public debate. As one commenta-

tor has noted:

Although all libel plaintiffs have an interest in re-

ceiving compensation for injury to their reputation,

private figure plaintiffs have a greater interest in

preventing attention from being focused on their

lives in the first place... . Thus if punitive dam-

ages serve the function of deterring such unauthor-

ized prying, they might be awarded despite their

chilling effects on the media. Since private figure

plaintiffs have a greater interest in keeping the de

tails of their lives undisclosed, punitive damages are

more appropriate in such cases. Public figures or

public officials subject even their “personal attri-

butes” and character to the media’s inspection by en-

tering public life, and they have less of an interest

in deterring prying into their affairs.

Comment, The Constitutionality of Punitive Damages in

Libel Actions, 45 Ford. L. Rev. 1382, 1402-1408 (1977)

(footnotes omitted).

Given that “the protection of private personality, like

the protection of life itself, is left pi‘marily to the indi-

vidual states,” Rosenblatt v. Baer, 388 U.S. 75, 92 (1966)

(Stewart, J., concurring), states like Virginia should be

constitutionally free to award punitive damages to pri-

vate figures where actual malice has been proven by a

mere preponderance of the evidence.

What the Supreme Court of Virginia has done is to

“sacrifice good sense to a syllogism.” Holmes, The Com-

mon Law 36 (1881). Proof of actual malice by clear

and convincing proof in the public figure setting does

not require the adoption of similar “clear and convinc-

ing” federal standard in the private figure/punitive dam-

ages context. Indeed such a radical invasion of the

perogatives of the states runs directly counter to Gertz’s

policy proscriptions.

If the Virginia Supreme Court’s decision is permitted

to stand it will effectively deprive ail hapless ordinary

citizens in Virginia who are libeled by the press of the

opportunity to recover punitive damages. Further, it will

create additional precedent for the erroneous notion that

the First Amendment compels a clear and convincing

standard whenever actual malice is required, regardless

of the status of the individual plaintiff. See infra at

19-20. This Court should therefore grant certiorari to

resolve this timely and important question.

B. Lower Courts Are Divided As To Whether Actual

Malice Must Be Proven By “Clear and Convincing”

or “A Preponderance” of the Evidence In Order To

Support an Award of Punitive Damages After

Gertz.

The lower federal and state courts are divided as to

whether actual malice must be proven by “clear and

convincing evidence,” or simply by “a preponderance” of

the evidence in order to support an award of punitive

damages to private figures post-Gertz. See generally,

2 Goodale, Communications Law 1984, 646-647 (1984) ;

Marcone v. Penthouse Int'l, Ltd., 577 F.Supp. 318 (E.D.

1983).

Thus in Rimmer v. Colt Industries Operating Corp.,

656 F.2d 323 (8th Cir. 1981), Judge Bright writes in

concurrence that: “Under the Gertz standard ..., a

[private] plaintiff, to recover punitive damages, must

prove by a preponderance of the evidence, that [the de-

fendant] made a false statement, knowing it to be false

or with reckless disregard for its truth.” Jd. at 331.

Similarly, in Pirre v. Printing Developments, Inc., 468

F.Supp. 1040 (S.D.N.Y. 1979) the court discussed Gertz

at length in its deliberations as to whether a punitive

OW OT ESR Ta m=

damage award to a private figure could be sustained on

a mere preponderance standard. It concluded:

Defendant suggests the strength of the free speech

interests here . . . compels application of the burden

of convincingly clear proof. By focusing on the con-

text and nature of the speech, rather than the status

of the plaintiff as a public or private individual, de-

fendant’s approach is akin to that of the Rosenbloom

plurality, which the Court repudiated in Gertz.

Since Pirre is a private person, we conclude that

beyond the minimal restrictions spelled out in Gertz,

the constitution leaves it to Connecticut to define the

appropriate standard of proof.

Id. at 1043 (footnote omitted) (emphasis added). A

preponderance standard was adopted. Accord, Miller v.

Lear Siegler, Inc., 525 F.Supp. 46, 62 (D.Kan. 1981).

However other lower federal and state courts have

reached the same result as the Supreme Court of Virginia

on this issue. For example, in Meadows v. Taft Broad-

casting Co., 470 N.Y.S. 2d 205 (4th Dep’t 1983), the

Supreme Court of New York found that:

Plaintiffs’ claim for punitive damages is, of course,

dependent upon a showing that defendants acted

with actual malice .... We recognize that if the

requirement of showing actual malice is to be an

effective aid in promoting First Amendment free-

doms. evidence of it should be clear and convincing.

Id. at 208 (citations omitted). Accord, Fitzgerald v.

Penthouse Int'l, Ltd., 525 F.Supp. 585, 597 (D. Md.

1981), rev’d 691 F.2d 666 (4th Cir. 1982) (appeals court

did not reach burden of proof issue in deciding that a

genuine issue of material fact existed as to actual malice),

cert. denied, 103 S.Ct. 1277 (1983); General Products

It is important to reemphasize that the Virginia Supreme

Court held as a matter of federal not state law that the standard of

proof required was “clear and convincing.” J.A. at 6a.

Co. v. Meredith Corp., 526 F.Supp. 546, 552 (E.D. Va.

1981).

This conflict running through the judiciary is further

complicated since, as the U.S. District Court for the

Eastern District of Pennsylvania pointed out in Marcone

v. Penthouse, Int’l Ltd., 577 F.Supp. 318, 326 (1983):

Several courts have also stated that a showing of

actual malice is required before punitive damages

may be awarded to a private figure plaintiff, without

stating explicitly the standard of proof to be ap-

plied. Golden Bear Distributing Systems v. Chase

Revel, Inc., 708 F.2d 944, 947 (5th Cir. 1983) (im-

plying that the standard is the same as that needed

to establish liability by a public figure); Wilson v.

Scripps-Howard Broadcasting Co., 642 F.2d 371,

375 n.1 (6th Cir.), cert. granted, 454 U.S. 962, 102

S.Ct. 500, 70 L.Ed. 2d 377, appeal dismissed 454

U.S. 1180, 102 S.Ct. 984, 71 L.Ed.2d 119 (1981) ;

Littlefield v. Fort Dodge Messenger, 614 F.2d 581,

584 (8th Cir.), cert. denied, 445 U.S. 945, 100 S.Ct.

1342 63 L.Ed.2d 779 (1980); Jenoff v. Hearst

Corp., 453 F. Supp 541 (D. Md. 1978), affd 644

F.2d 1004 (4th Cir. 1981) (implying the standards

are the same); Handleman v. Hustler Magazine,

Inc., 469 F.Supp. 1058, 1059 n.11 (S.D.N.Y. 1979).

Thus, as the law now stands after the decision below,

private figure libel plaintiffs in Virginia may only obtain

punitive damages upon a showing of actual malice by

clear and convincing evidence. The Virginia Supreme

Court has held that the United States Constitution and

the decision of this Court in Gertz compel such a result.

Yet private figure libel plaintiffs in other states and

jurisdictions are not barred from obtaining punitive

damages upon a showing of actual malice by a simple

preponderance of the evidence standard.

This is an intolerable conflict among the states and

federal circuits on a fundamental matter of federal con-

stitutional law. It is wholly unfair to private figure libel

plaintiffs residing in states like Virginia who are vic-

timized by outrageous and defamatory media conduct

such as that sub judice. At a time of escalating media

assaults on individuality and personal dignity and a

corresponding increase in the filing of libel suits by pri-

vate figures nationwide, this Court should accept cer-

tiorari in order to address clearly the issue of how far

punitive damage awards are properly limited by the First

Amendment.

Il. THE DECISION BELOW IS IN CONFLICT WITH

APPLICABLE LIBEL DECISIONS OF THIS

COURT.

A. The Supreme Court of Virginia Misapplied This

Court’s Holding in Bose v. Consumers Union by

Conducting An Independent Review of the Factual

Determinations Underlying the Jury’s Finding Of

Actual Malice, Rather Than Limiting its Review to

the Ultimate Conclusion of Actual Malice.

The decision of this Court in Bose Corp. v. Consumers

Union, 52 U.S.L.W. 4513 (U.S. April 30, 1984) (No. 82-

1246), reaffirmed the proposition first established in

New York Times v. Sullivan that appellate courts are

obliged under the First and Fourteenth Amendments in

defamation actions instituted by public officials to under-

take an “ ‘independent examination of the whole record,’

in order to make sure ‘that the judgment does not consti-

tute a forbidden intrusion on the field of free expres-

sion.’” Id. at 4517 (quoting New York Times Co. v.

Sullivan, 376 U.S. 254, 284-86 (1964)). The Court

stressed the fact that: “Judges as expositors of the Con-

stitution, must independently decide whether the evidence

in the record is sufficient to cross the constitutional

threshold that bars the entry of any judgment that is

not supported by clear and convincing proof of actual

malice.” Jd. at 4520.

The level of appellate review mandate by Bose oe-

curred in the context of a public figure libel action. By

contrast, the plaintiffs in this case are private figures.

This case thus represents an important factual variation

on Bose which the Court should consider in order to give

further clarification to just how far independent appel-

late review extends in light of the reputational interests

at stake.

In Levine v. CMP: Publications, Inc., 738 F.2d 660,

672, fn.19 (5th Cir. 1984), a divided panel of the Fifth

Circuit stated its conviction that:

the more rigorous standard of review mandated by

Bose Corp. v. Consumers Union of United States,

Inc.. —— U.S. ——, 104 S.Ct. 1949, 80 L.Ed.2d 502

(1984), for awards of actual damages in defama-

tion suits brought by public-figure plaintiffs, is in-

appropriate [in a private defamation plaintiff con-

text]. Ten years ago in Gertz the Supreme Court

recognized that there are important, salutary and

constitutionally founded reasons for maintaining dis-

tinctions between defamation actions brought by

private individuals and those brought by public fig-

ures and for allowing the states to regulate the

former within much less restrictive bounds than

those imposed by the federal courts in the latter.

Until the Supreme Court overrules it, this court

must abide by Gertz by applying principles of state,

not federal law to defamation suits brought by pri-

vate persons.

(But, cf. Judge Tate, dissenting: “. . . it seems to me

that the [Supreme] Court’s rationale [in Bose] extends

to appellate review . . . whether it be an alleged libel

against (as here) a private person or a public figure.”

738 F.2d 66, 684-685.) 7

7 Bose being a relatively recent opinion, the Fifth Circuit appears

to be the only court to have addressed the question of whether the

Bose standard of independent appellate review applies as vigorously

in the private figure context as it does in the public figure context.

One need not be clairvoyant, however, to see that this conflict will

Petitioners strongly agree with the Fifth Circuit’s rea-

soning on this question. Gertz is properly read as allow-

ing less rigorous appellate review of jury findings in

defamation actions brought by private citizens against

media defendants. The same policy considerations ana-

lyzed above apply. Supra at 15-18.

However, assuming, arguendo, the Supreme Court of

Virginia correctly read Bose to require a rigorous inde-

pendent appellate review of a punitive damage award re-

covered by private figures, the lower court nevertheless

misapplied Bose by refusing to limit the application of

its independent judgment to the jury’s ultimate conclu-

sion of actual malice. Instead, the Supreme Court of

Virginia impermissibly reexamined the evidence intro-

duced at trial. After doing so, it then chose to believe

the newspaper’s assertion that it had not acted with reck-

less disregard for the truth. Moreover, it did so when

the jury, on the basis of its first-hand evaluation of the

credibility of the principal witnesses, had reached pre-

cisely the opposite conclusion.

It cannot seriously be contended that Bose either held or

even suggests that appellate courts are free to make what-

ever factual determinations they desire in reviewing def-

amation cases. Tavoulareas v. Washington Post, No. 83-

1605, slip op. at 22-25 (D.C. Cir. April 9, 1985). On the

contrary, Bose requires appellate courts to exercise their

independent judgment solely on the ultimate issue, i.e.,

whether there is sufficient evidence of actual malice when

the record is viewed as a whole. Moreover, in evaluating

the record, the totality of the evidence must be viewed in

the light most favorable to the plaintiff. Id. at 26.

To leave standing the broad powers of de novo review

claimed by the Virginia Supreme Court under Bose would

soon be duplicated both within and among the other federal circuits.

Preventing this incipient conflict from developing and creating fur-

ther uncertainties in the law of defamation is another reason for

granting review at this time.

be to sanction the vesting of all appeliste courts around

the country with original jurisdiction in libel actions.

This Court should grant review to reverse the Virginia

Supreme Court’s misapplication of Bose and thereby pre-

vent the further evisceration of jury awards by appellate

courts under Bose’s purported authority.

B. The Supreme Court of Virginia Ignored Relevant

Libel Decisions of This Court Bearing on Proof of

the Reckless Disregard Component of Actual Malice.

In order for petitioners to recover punitive damages

under Gertz, they were required to show that respondent

acted with actual malice. Actual malice has been defined

by this Court to mean publication with knowledge of

falsity or with “reckless disregard” of whether the story

was false or not. New York Times Co. v. Sullivan, 376

US. at 280.

The Court has defined the “reckless disregard” com-

ponent of the actual malice requirement variously as “a

‘high degree of awareness of . . . probable falsity’”’, St.

Amant v. Thompson, 390 U.S. 727, 731 (1968) quoting

Garrison v. Louisiana, 379 U.S. 64, 74 (1964) and as

whether “the defendant . . . entertained serious doubts

as to the truth of his publication.” St. Amant, id. Jus-

tice Harlan’s plurality opinion in Curtis Publishing Co.

v. Butts, 388 U.S. 130, 155 (1967), held that recovery

under this standard might also be grounded upon “a

showing of highly unreasonable conduct constituting an

extreme departure from the standards of investigation

and reporting ordinarily adhered to by responsible pub-

lishers.”

This Court has recognized that proof of “reckless dis-

regard” sufficient to establish actual malice cannot be

encompassed by any one formula. Judicial determination

that a given factual situation comes within the orbit of

actual malice is to be made on a case by case basis. St.

Amant, 390 U.S. at 730-731. Because establishing reck-

less disregard necessarily requires a showing of subjective

doubts on the defendant’s part, it is difficult to prove.

This is not to suggest, however, that this and other lower

federal courts have failed to provide adequate guidance

on how a libel plaintiff may prove reckless disregard for

the truth.

We begin with this Court’s statement in St. Amant,

ignored by the Supreme Court of Virginia, to the effect

that:

The defendant in a defamation action . . . cannot

. . . automatically insure a favorable verdict by tes-

tifying that he published with a belief that the

statements were true. The finder of fact must deter-

mine whether the publication was indeed made in

good faith.

St. Amant, 390 U.S. at 732.

The finder of fact in this instance was the jury. After

hearing the evidence, it determined that the defamatory

statements at issue had not been published in good faith

but with reckless disregard for the truth. However, the

Virginia Supreme Court, in contravention of St. Amant,

overturned this finding reasoning that: “The editor ap-

proved the article for publication believing it complied

with standards of proper journalism.” J.A. at 43a (em-

phasis added). Stated differently, the Virginia Supreme

Court relied solely upon testimony by respondent to the

effect that he published with a belief that the article was

true to exonerate the Port Packet of the charge of having

acted recklessly. Yet the trial judge correctly noted that

the editor deliberately penned a false headline. Record

at 914. See Sprouse v. Clay Communications, Inc., 211

S.E.2d 674, cert. denied, 423 U.S. 882 (1975). This sub-

stantial departure from St. Amant alone warrants re-

review and reversal cf the Virginia Supreme Court’s ac-

tion by this Court.

Equally serious as the contravention of this Court’s

holding in St. Amant, is the lower court’s refusal to view

the cumulation of circumstantial evidence introduced at

trial by petitioners as proof of respondent’s reckless con-

duct. In a series of decisions by this and lower federal

courts it has been clearly established that a variety of

circumstantial, yet objective factors, are relevant where

the mental state of a libel defendant is at issue. Thus,

this Court has held that the following circumstantial

factors are evidence of actual malice: (1) publication

with serious doubt, St. Amant, 390 U.S. at 731; (2)

evidence that a newspaper followed a sensationalistic news

reporting policy, Curtis Publishing Co. v. Butts, 388 U.S.

130, 167 (1967); (8) the known unreliability of sources,

St. Amant, 390 U.S. at 732; (4) knowledge of harm likely

to follow publication, Curtis Publishing Co., 388 U.S. at

170; (5) urgency of publication, Rosenbloom v. Metro-

media, Inc., 403 U.S. 29 (1971); and (6) the resolution

of inferences adverse to the plaintiffs, Time, Inc. v. Pape,

401 U.S. 279 (1971).

To this catalogue of indicia of reckless disregard, lower

federal and state courts have added: evidence of motive

and intent, Goldwater v. Ginzburg, 414 F.2d 324, 342

(2d Cir. 1969), cert. denied, 396 U.S. 1049 (1970) ; sup-

pression of information favorable to the plaintiffs, In-

dianapolis Newspapers, Inc. v. Fields, 259 N.E.2d 651,

cert. denied, 400 U.S. 930 (1970); and refusal to retract

after a showing of falsity, Golden Bear Distributing Sys-

tems of Texas v. Chase Revel, Inc., 708 F.2d 944 (5th

Cir. 1983).

Collectively these cases clearly enunciate this Court’s

view that actual malice recklessness may be inferred from

an accumulation of circumstantial evidence. See Tavoula-

reas v. Washington Post, No. 83-1605, slip op. at 37-39

(D.C. Cir. released April 9, 1985).

In attempting to meet this cumulative test of reckless

disregard, petitioners relied upon various indicia of in-

tent for the purpose of establishing by cumulation and

by appropriate inferences the requisite degree of culpa-

Dia aaciiaiaicaaaiiaiaiiad

bility. Thus petitioners demonstrated by a web of cir-

cumstantial evidence that:

—The newspaper deliberately fabricated portions of

the defamatory story;

—The newspaper knew of the harm that would likely

result from publication of the defamatory story;

—The defamatory information published by the

newspaper [inclusion of the “Mark” incident in an

article on child abuse] was contradicted by the

newspaper’s own sources for the story;

—The newspaper’s editor deliberately penned a false

headline;

—The newspaper suppressed information favorable

to the parents;

—The newspaper was under no time constraints in

preparing the story; and

—The newspaper’s investigation of the circum-

stances surrounding the accidental death of plain-

tiffs’ child was cursory. [This research is the

only research relevant to the punitive damages is-

sue. The fact that the remaining portions of the

child abuse article may have been “researched in

depth” points out respondent’s reckless conduct in

failing to further verify the accuracy of the facts

surrounding the accidental death of petitioners’

son. ]

This accumulation of evidence amply supported the

jury’s finding of actual malice. Bose Corp. v. Consumers

Union, 692 F.2d 189, 196 (1st Cir. 1982), aff'd, 52

U.S.L.W. 4513 (U.S. Apr. 30, 1984). The Virginia Su-

preme Court was in error to disregard this evidence and

the past decisions of this Court emphasizing its probative

value.

CONCLUSION

For all of the foregoing reasons, a writ of certiorari

should issue to review the judgment and opinion of the

Supreme Court of the State of Virginia.

Respectfully submitted,