# 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

94-1723

No

i

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,

V.

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)

ii

—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)

iv

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

v

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

vi
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
ee

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

3

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.”

4

“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.

5

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,

6

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.

7

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-

8

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

9

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

10

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:

11

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.

12

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

13

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-

14

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

15

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.

16

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

17

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-

18

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=

19

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.

20

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

21

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

22

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

23

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.

24

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-

25

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

26

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

27

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.

28

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,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0167%3A1. Public record. Not legal advice.