Appendix — Fleming v. Moore

8 4 -_ 1 74 A 0 (9 | ae oom oa vs]

MAY 2 1985

ALEXANDER L. STEVAS,

CLERK

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1984

JAMES N. FLEMING,

Petitioner,

v.

W. BEDFORD MOORE, Ii,

Respondent.

On Writ of Certiorari to the Supreme

Court of Virginia

PETITION FOR WRIT OF CERTIORARI

APPENDIX

D. Alan Rudlin

Counsel of Record

W. Jeffery Edwards

Robert L. Brooke

HUNTON & WILLIAMS

P. O. Box 1535

Richmond, Virginia 23212

(804) 788-8200

Counsel for Petitioner

[44

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1984

JAMES N. FLEMING,

Petitioner,

v.

W. BEDFORD MOORE, Ill,

Respondent.

On Writ of Certiorari to the Supreme

Court of Virginia

PETITION FOR WRIT OF CERTIORARI

APPENDIX

D. Alan Rudlin

Counsel of Record

W. Jeffery Edwards

Robert L. Brooke

HUNTON & WILLIAMS

P. O. Box 1535

Richmond, Virginia 23212

(804) 788-8200

Counsel for Petitioner

APPENDIX A

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Il,

Plaintiff,

Vv.

JAMES N. FLEMING,

Defendant.

Law No.

April 28, 1978

FINAL JUDGMENT ORDER

Plaintiff and Defendant, by counsel, came to be

heard upon the following pleas and motions on the following

dates: on November 30, 1977, on Defendant's Motion for

Summary judgment; on December 2, 1977, on Plaintiff's Motion

for Leave to Amend his Motion for Judgment previously filed

herein, and Defendant's Motions for a Continuance and for

leave to file additional pleadings; on December 6, 1977, on

Defendant's Plea of the Statute of Limitations, Demurrer to

Plaintiff's Amended Motion for Judgment, Amended Grounds of

Defense and Plea of Justification, Motion for Continuance,

Motion for Judgment by Defavit, and Motion for Summary

Judgment; and were argued by counsel.

Upon consideration whereof, the Court ADJUDGED

and ORDERED:

(1) On December 2, 1977, Defendant was

granted leave to file additional pleadings and Defendant's Mo-

tion for Summary Judgment and Motion for a Continuance

were overruled. On the same date, Plaintiff was granted

leave to amend his Motion for Judgment by adding the

numbered paragraph (6) which had been filed with the Clerk,

but only through and including the second line of the second

page of said amendment ending with the sentence which con-

cludes with the words "race or ethnic origin." Plaintiff's Mo-

tion for Leave to Amend his Motion for Judgment was denied

as to the remainder of said numbered paragraph (6) which fol-

lows the sentence ending with the words "race or ethnic ori-

gin," to which ruling the Plaintiff objected and duly noted his

objections.

(2) On December 6, 1977, Defendant's Plea of

the Statute of Limitations, Demurrer to Plaintiff's Amended

Motion for Judgment, Motion for Continuance, Motion for

Judgment by Default, and Motion for Summary Judgment to

Plaintiff's Amended Motion for Judgment’ were denied and

overruled. On the same date, Defendant's Plea of Justifica-

tion was struck in part and Defendant's Amended Grounds of

Defense to Plaintiff's Amended Motion for Judgment were al-

rewed through paragraph (4) thereof, and paragraphs (5)

through (8) thereof were stricken.

On December 6, 1977, again the parties, by coun-

sel, came and also a civil panel pursuant to the venire facias

heretofore issued. The venire was duly sworn and examined

the Court. During the voir dire, Defendant moved for a mis-

trial, which motion was considered by the Court and over-

ruled. Three members of the venire were excused for cause

by the Court and replaced by three additional members who

were duly sworn and examined. The venire was then found to

be free of exception, whereupon, counsel for the Plaintiff and

counsel for the Defendant jointly, alternately, struck three

members from the panel, leaving seven veniremen who were

thereupon duly sworn to well and truly try the issues joined

between the parties and a true verdict to render according to

the law and evidence.

After the opening statements of counsel and the

presentation of Plaintiff's evidence, counsel for Defendant

moved to strike the Plaintiff's evidence, which motion was ar-

gued by counsel, duly considered by the Court and overruled.

To which ruling the Defendant objected and noted his excep-

tions. The Defendant then introduced his evidence and rested.

Whereupon counsel for the Plaintiff moved to strike Defen-

dant's evidence regarding his counterclaim. Defendant immedi-

ately took a nonsuit on his counterclaim before the Court

ruled on Plaintiff's motion to strike.

One of the grounds advanced by the Defendant

for his motion to strike was that the publication was not li-

belous per se and that plaintiff's evidence disclosed no proof

of specific damages, which ground the Court duly noted, over-

ruled and found that such publication was libelous per se, to

which ruling the defendant duly objected and excepted. Like-

wise, in support of his objection to the instructions, defendant

advanced the same ground, upon which the same rulings were

made by the Court and the defendant duly noted his objec-

tions and exceptions.

Whereupon, the Court received proposed instruc-

tions from counsel for Plaintiff and counsel for Defendant,

granted some, amended some, and refused some. Counsel

were then given the opportunity to note their exceptions ana

objections with regard to the instructions. Thereupon, the

Court instructed the jury and counsel made their closing argu-

ments.

The jury retired from the courtroom to consider

its verdict.

After due deliberation, the jury returned to the

courtroom with the following written verdict:

We, the Jury, find our verdict

for the Plaintiff and award

him for general damages, the

sum of $10,000.00, and for pu-

nitive damages, the sum of

$100,000.00.

Kenneth C. Rogers, Foreman.

Whereupon, the Defendant moved to set aside the

verdict of the jury and enter a final verdict for the Defen-

dant or in the alternative, to set aside the verdict and award

the Defendant a new trial. The Court set dates by which

the parties should submit authority and argument with regard

to Defendant's motion. On motion of the Defendant agreed

to by Plaintiff, the Court subsequently allowed each party

three additional! days to submit his authority and argument.

By agreement of counsel, the Defendant's motion was then

submitted to the Court for its decision and after mature con-

sideration, the Court was of the opinion that Defendant's mo-

tions should be and were in every respect denied, to which

action of the court the Defendant objects.

On April 20, 1978, came the parties again by

counsel and the court considered defendant's motion filed on

April 19, 1978, for Reconsideration of Defendant's motion for

Summary Judgment, ete. After hearing argument of counsel

and having duly considered the same the Court doth hereby

deny said motion, to which defendant duly objects and ex-

cepts.

On the same date last mentioned came the par-

ties by counsel to be heard upon defendant's motion for Re-

mittitur. Upon evidence introduced by the Defendant in sup-

port thereof, to which evidence plaintiff objected, and upon

the record in this case, and the same was argued by counsel.

And the Court thereupon took said motion under advisement.

On the 28th day of April, 1978, came the parties

again by counsel and the Court having reviewed portions of

the trial transcript doth hereby deny said motion.

It is therefore ADJUDGED and ORDERED that

the Plaintiff having judgment against the Defendant, James N.

Fleming, in accordance with the aforesaid verdict of the jury

in the sum of $110,000.00, plus costs, and interest from

December 7, 1977.

And the said Defendant, by counsel, having indi-

eated his intention to petition the Supreme Court of Virginia

for an appeal, execution of this judgment is suspended until

the Supreme Court acts upon said petition for appeal, and the

Defendant, if an appeal is sought, shall within. 30 days post

_ an appeal bond with provisions conditioned according to law in

the penalty of Twenty Thousand Dollars ($20,000.00), with ap-

proved surety. And the transcript is hereby made a part of

the record.

ENTER: /s/ David F. Berr

DATE: 4-28-78

Seen and objected to as

to the amount of bond

/s/ Thomas E. Albro

E. Gerald Tremblay

Thomas E. Albro

Trembly & Smith

105-109 E. High Street

Charlottesville, Virginia 22901

Counsel for Plaintiff

Seen and objected to for all reasons

previously stated including failure of

court to rule for defendant on motions for

summary judgment, motion to strike, motion to

set aside, etc.

/s/ Gerald G. Poindexter

Gerald G. Poindexter

Greene & Poindexter

304 West Cary Street

Richmond, Virginia 23220

Counsel for Defendant

Objected to for reasons previously

stated

/s/ Charles Edward Carter

Charles Edward Carter

1790 Broadway

New York, New York 10019

A-9

APPENDIX B

JAMES N. FLEMING,

Appellant,

against

W. BEDFORD MOORE, Ii,

Appellee.

Record No. 781061

March 6, 1981

221 Va. 884, 275 S.E.2d 632

COCHRAN, J., delivered the opinion of the

Court.

W. Bedford Moore, III, initiated this libel action

against James N. Fleming in the court below. Final judgment

was entered by the trial court on the jury verdict awarding

Moore $10,000 in compensatory damages and $100,000 in puni-

tive damages.!

Moore was a white, tenured, assistant professor in

the Humanities Division of the School of Engineering at the

University of Virginia during the 1975-76 academic year. His

residence ee as "Shack Mountain", located in Albemarle

County, has architectural significance because of its

Jeffersonian styling. The Moore land adjoined a tract known

as "Evergreen", owned by Fleming and others and situated

near the Rivanna Reservoir.

1 During oral argument, a motion to dismiss for failure to

remedy defects in the appeal bond was renewed. On February

21, 1979, when the appeal was awarded, bond was set by this

Court at $120,000. On March 6, 1979, the Clerk of the Cir-

cuit Court certified that Fleming had appeared before her and

given bond in the amount of $120,000 with approved surety.

We therefore overrule the motion to dismiss. See Code

§ 8.01-676; Rule 5:31.

B-2

Fleming, a black real estate broker and developer,

sought approval in the fall of 1974, first from the Planning

Commission and then from the Board of Supervisors of

Albemarle County, to have "Evergreen" rezoned from Agricul-

ture to Residential Planned Unit Development. Upon rezoning,

Fleming proposed to construct a planned unit development of

high-density residential units for a predominantly black,

lower-middle-income group of occupants.

The Planning Commission and Board of Supervisors

held several meetings to consider Fleming's application and

Moore spoke briefly during two of the meetings in opposition

to the proposed development. Moore's position was that the

project, if constructed, would create a pollution hazard to the

Rivanna Reservoir, which supplies water to the City of

Charlottesville, and that it would also detract from the value

of his own property. Moore never gave interviews to the

press concerning the planned development and never spoke

about in public except at the two meetings. During the

course of public debate over the proposed development, county

planning officials advanced the idea that if Fleming's applica-

tion for rezoning were to be approved, a tree buffer should

B-3

evn

be required along the boundary line between the "Evergreen"

and "Shack Mountain" properties. Moore felt that the buffer

would be a good idea since it would screen his property from

the "Evergreen" development. Fleming's plan was reviewed by

the appropriate county agencies, the public was afforded an

opportunity to comment on it, and his application for rezoning

was subsequently denied by the Board of Supervisors in

December, 1975.

In January, 1976, Fleming published in two news-

papers a paid advertisement captioned "RACISM" in which

Moore was identified by name. The advertisement appeared in

the Charlottesville-Albemarle Tribune, a newspaper of general

circulation in the community, on January 8, 1976, and in The

Cavalier Daily, a university student newspaper, in its January

15 and 16, 1976, editions.2

2 The advertisement appeared in print as fol-

lows:

(Paid Advertisement)

RACISM

I have endeavored to realize the opportunity

(Footnote cont.)

B-4

(Footnote cont.)

to provide housing and pleasant surroundings

for working people--the sort of people who

made this the great country that it is.

I do not expect any Farmington members to

buy my houses. The tenured position-hoJders

who live off the public dole at the expense

of the working people are already

well-housed, and could not be expected to

live in a racially-integrated neighborhood,

anyhow.

There is a great deal of irony in the iact

that here in Mr. Jefferson's country 200

years after his vision of situating his beloved

Monticello upon the hilltop overlooking the

developing community we have a replica of

Monticello upon the hill overlooking my prop-

erty which is occupied by a man who wants

to deprive working people of the same

opportunities that Mr. Jefferson sought for

them. Mr. Jefferson even located his slaves'

quarters down the hill from his house, but

Bedford Moore, the occupant of little

Monticello does not want any black people

within his sight.

There is 4 great conflict waging between the

haves and the have-nots. Obviously we have

created too much financial security for the

tenured segment of the economic community

whose greed is repeatediy shown by their ex-

pression of "I've got mine--too bad about

you.”

I am a lover of liberty and freedom of op-

portunity. I cannot stand by and see the

have-nots oppressed by the no-growth people

(Footnote cont.)

Claiming that the article injured his reputation in the university

community, Moore brought this action for libel.

[1] The first issue on appeal is whether the trial

court erred in ruling, as a matter of law, that the article was

defamatory per se and in submitting the issue of liability to

3

the jury upon such a theory. At trial, counsel for Fleming

(Fvotnote cont.)

who are living off of our work. I know

that this Country did not achieve the highest

living standard in the world by no-growth or

by oppression of the working man, and yet

today the opportunity to improve one's living

standard is being violently opposed by the

same people who oppose my proposed neigh-

borhood.

Pollution of the reservoir is being used as

the current excuse to foster no-growth. The

solution, of course, is to remove the guaran-

teed incomes of these greedy people and put

them in the position of seeing the world

through the eyes of one seeking the opportu-

nity to improve his or her living standard.

Only then would they admit that the pollu-

tion excuse is a sham.

I will develop Evergreen, and a lot of people

will benefit from it.

SIGNED: JAMES N. FLEMING

3 It is unclear from the record whether the jury was told

that the article, if defamatory at all, was defamatory per se.

(Footnote cont.)

conceded that the trial court, rather than the jury, should de-

termine whether the article was libelous per se, but he ob-

jected to the determination made by the court.

Unlike most states, Virginia makes no distinction

between actions for libel and those for slander. Shupe v.

Rose's Stores, 213 Va. 374, 375-76, 192 S.E.2d 766, 767 (1972);

see Note, Defamation in Virginia--A Merger of Libel and

Slander, 47 Va. L. Rev. 1116 (1961); W. Prosser, Torts § 112,

(Footnote cont.)

The Appendix includes Instruction No. 8, which so provided,

marked "given" by the trial court. Although the transcript

records the reading to the jury by the trial court of all other

Instructions marked "given", it fails to show that Instruction

No. 8 was so read.

Assuming, however, that Instruction No. 8 was not

given, we conclude that the trial court submitted the case to

the jury upon a theory of per se defamation. Other instruc-

tions informed the jury that Moore was presumed to have suf-

fered general damages, and that the absence of actual injury

was to be considered only in diminution of damages. The

presumption of damages is the critical distinction between def-

amation per se and other actions for defamation. See Shupe

v. Rose's Stores, 213 Va. 374, 376, 192 S.E.2d 766, 767 (1972);

Slaughter v. Valleydale Packers, 198 Va. 339, 346- 48, 94

S.E.2d 260, 266 (1956). Sinee the jury instructions allowed

the jury to presume damages, the case was presented to the

jury on the theory of per se defamation even if Instruction

No. 8 was not given.

B-7

at 763 n. 33 (4th ed. 1971). We have held that actions for

libel are treated as actions for slander, and that the

common-law rules of slander are applicable, so that alleged de-

famatory language is actionable according to the following prin-

ciples:

At common-law defamatory words

which are actionable per se are:

(1) Those which impute to a person

the commission of some criminal of-

fense involving moral turpitude, for

which the party, if the charge is true,

may be indicted and punished. (2)

Those which impute that a person is

infected with some contagious disease,

where if the charge is true, it would

exclude the party from society. (3)

Those which impute to a person un-

fitness to perform the duties of an

office or employment of profit, or

want of integrity in the discharge of

the duties of such an office or em-

ployment. (4) Those which prejudice

such person in his or her profession or

trade. All other defamatory words

which, though not in themselves ac-

tionable, occasion a person special

damages are actionable.

Shupe, 213 Va. at 376, 192 S.E.2d at 767, quoting Carwile v.

Richmond Newspapers, 196 Va. 1, 7, 82 S.E.2d 588, 591 (1954).

B-8

Racism, of course, is neither a contagious disease

nor a criminal offense for which a person may be indicted and

punished. Thus, a finding of per se defamation in the present

ease could only be based upon the effect of the allegation

upon the plaintiff's work. The trial court ruled, as a matter

of law, that the allegation of racism prejudiced Moore in his

profession.

To be actionable without proof of "special damag-

es", we have held that the words must contain an imputation

that is "necessarily hurtful" in its effect upon plaintiff's busi-

ness and must affect him in his particular trade or occupation.

James v. Haymes, 160 Va. 253, 261-62, 168 S.E. 333, 336

(1933). Accord, W. Prosser, Torts § 112, at 758 (4th ed. 1971)

("defamation of a kind incompatible with the proper conduct of

the business, trade, profession or office itself"). There must be

a nexus between the content of the defamatory statement anc

the skills or character required to carry out the particular oc-

cupation of the plaintiff. Restatement (Second) of Torts § 573.

Comment e (1976). For example, because an attorney is re-

quired to adhere to the disciplinary rules, charging an attorney

with unethical conduct is defamatory per se. Carwile, supra,

196 Va. at 8, 82 S.E.2d at 592. The words themselves must

necessarily be damaging to the attorney in his profession.

Not every defamatory statement, however, is "nec-

essarily hurtful" to a plaintiff's business and touches the plain-

tiff in his special trade or occupation. The allegation that a

person has refused to pay a money debt is not per se defama-

tory if that person is not engaged in a vocation in which cred-

it is necessary for the proper and effectual conduct of his

business. M. Rosenberg & Sons v. Craft, 182 Va. 512, 519, 29

S.E.2d 375, 378 (1944). Accord, Weaver v. Finance Company,

200 Va. 572, 106 S.E.2d 620 (1959). Likewise, written notice

that credit is being denied to a bookkeeper-secretary does not

touch the plaintiff in her special trade or vocation. See

Shupe, supra. That a defamatory statement may have had an

adverse impact upon a plaintiff's work does not make that

statement per se defamatory where the defamation is not "nec-

essarily hurtful" to the plaintiff's business and does not touch

the plaintiff in his special trade or occupation.*

4 "Thus, a statement that a physician consorts with

harlots is not actionable per se, although a charge that he

(Footnote cont.)

B-10

Because libel actions in Virginia are governed by

common-law rules applicable to slander actions, libel cases from

other jurisdictions are not helpful.” There are analogous cases,

however, holding that slanderous imputations of Communism do

not touch the individual in his chosen profession. See, e.g.,

Kory v. International Telephone & Telegraph Corp., 444 F.

Supp. 193, 196 (S.D.N.Y. 1978) (allegation that journalist, a

former ambassador, was a Communist held not to be slanderous

per se); Gurtler v. Union Parts Mfg. Co., 1 N.Y.2d 5, 150

N.Y.S.2d 4, 132 N.E.2d 889 (1956) (allegation that an engineer

was a Communist held not to be slanderous per se).

(Footnote cont.)

makes improper advances to his patients is actionable." The

former statement does not necessarily affect his reputation as

a physician but the latter directly affects it. Restatement

(Second) of Torts § 573, Comment e (1976).

5 Although Annot., 33 A.L.R.2d 1196, § 15 (1954 & Later

Case Service) details many cases concerning allegations of ra-

cial intolerance, most of the cases concern libelous, not slan-

derous, statements. In most jurisdictions, libelous statements

are actionable without special damages even though they do

not touch the plaintiff in his particular trade or vocation. As

we have already noted, Virginia does not distinguish between

slander and libel actions.

B-11

ge ee ee ee eee ee ee ee

sect tak a ening ne inti ae he ee a chim 4)

[3] In the present case, Fleming charged Moore

with not wanting blacks to reside within sight of his home, but

the allegation of racism was not made in the context of

Moore's employment as a teacher.° We conclude that, while

the allegation might have adversely affected Moore's work, the

statements did not necessarily affect him in his particular pro-

fe«tion and consequently were not defamatory per se. We hold,

therefore, that the trial court erred in ruling that Fleming's

advertisement was defamatory per se in that it necessarily was

hurtful in its effect upon Moore's employment and adversely af-

fected Moore in his capacity as a teacher. The consequence

of this erroneous ruling, requiring reversal and remand for a

new trial, was that the jury was allowed to presume general

damages and also to award punitive damages based on the pre-

sumed damages.

Sinee this case must be remanded for a new trial,

we will resolve other issues that otherwise may arise again

upon retrial.

6 The advertisement did not ailege, for example, that

Moore discriminated against the black students in his classes.

B-12

[4] Fleming cuntends that Moore was a public fig-

ure and thus could not recover damages for defamation in the

absence of a showing that the statement was made with "actu-

al malice", that is, with "knowledge that it was false or with

reckless disregard of whether it was false or not", as defined

in New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).

The Supreme Court in Gertz v. Robert Welch, Inc.,

418 U.S. 323, 345 (1974), provided the following description of

a public figure:

For the most part those who attain

this status [of public figure] have as-

sumed roles of especial prominence in

the affairs of society. Some occupy

positions of such persuasive power and

infiuence that they are deemed public

figures for all purposes. More com-

monly, those classed as public figures

have thrust themselves to the fore-

front of particular public controversies

in order to influence the resolution of

the issues involved. In either event,

they invite attention and comment.

[5] Moore, a teacher at the University of Vir-

ginia, did not occupy a position of "such persuasive power and

influence" that he could be deemed a public figure "for all

purposes". Thus, we need only determine whether because of

his activity relative to the “Evergreen" proposal he was a

public figure for that limited purpose.

B-13

sesten-te ios ssh nmr sdemaanaall

AMI ce AAA aD! AB

aE Ms is ot

Se eee SCL Die Cee Se ater ee

We do not believe that Moore's role in the public

hearings concerning "Evergreen" merits his classification as a

public figure. Gertz cautioned that a court must focus upon

the "nature and extent of an individual's participation in the

particular controversy giving rise to the defamation". 418

U.S. at 352. The mere fact that Moore spoke twice in public

hearings concerning the "Evergreen" proposal is not de-

terminative since his use of the public forum substantially re-

sulted from nis desire to protect his private interests. In

Time, Inc. v. Firestone, 424 U.S. 448 (1976), the Court held

that resort to the judicial process in order to vindicate pri-

vate rights did not make the plaintiff a public figure. This

reasoning appears equally applicable here, where Moore re-

sorted to an administrative body in order to protect the value

of his own residence. Moreover, like the plaintiffs in Wolston

v. Reader's Digest, Inc., 443 U.S. 157, 167 (1979), and Gertz,

Moore never discussed the "Evergreen" proposal with the

media. He did not attempt to organize or lead opposition to

"Evergreen". Since Moore's involvement at the public hearings

was in his capacity as an adjoining private landowner whose

property might be affected by the proposed development, we

B-14

conclude that he was not a public figure. Therefore, he was

not required to show, as a prerequisite to recovery of com-

pensatory damages, that Fleming acted with malice that met

the New York Times standard.

[6] Fleming further contends, however, that even

if Moore was not a public figure, the trial court erred in al-

lowing the jury to award punitive damages on the basis of

common-law malice.” In Gertz, the Court condemned the

awarding of either presumed or punitive damages, "at least

when liability is not based on a showing of knowledge of fal-

8

sity or reckless disregard for the truth". 418 U.S. at 349.

The award of damages without proof of "actual injury"? was

7 The court instructed the jury in Instruction No. 9 that

punitive damages could be awarded if the jury believed from

a preponderance of the evidence that Fleming acted with "ac-

tual malice", that is, that he "was motivated by revenge, per-

sonal spite, ill will or a desire to injure the Plaintiff".

8 Since we have ruled that Moore may not recover pre-.

sumed damages because the article was not libelous per se,

we do not reach Fleming's contention that Gertz would prohib-

it the awarding of presumed damages without a showing of

knowing falsity or reckless disregard for the truth.

9 The opinion noted that damages for "actual injury" are

not limited to out-of-pocket loss, and that trial courts are

(Footnote cont.)

B-15

we en Le ee

condemned as "invitling] juries to punish unpopular opinion

rather than to compensate individuals for injury sustained by

the publication of a false fact". Id. On the basis of Gertz,

we vacated an award of punitive damages entered against a

publisher where the award was Dased upon a finding of

common-law malice, and held that it was necessary to show

knowledge of falsity or reckless disregard for the truth by

"clear and convincing evidence" before punitive damages could

be awarded. Newspaper Publishing Corp. v. Burke, 216 Va.

800, 805, 224 S.E.2d 132, 136 (1976). Gertz, however, did not

explicitly extend its rule to non-media defandants. Indeed,

the Supreme Court has recently noted that it has not resolved

whether the First Amendment requires application of the New

York Times rule in cases involving non-media defendants.

),20

Hutchinson v. Proxmire, 443 U.S. 111, 133-34 n. 16 (1979

(Footnote cont.)

permitted to compensate for impairment of reputation and

standing in the community, personal humiliation, and mental

anguish and suffering. Awards must be supported by compe-

tent evidence, although it is not necessary that the evidence

assign a dollar value to the injury. 418 U.S. at 350.

10 Lower courts are divided on whether the First Amend-

ment protections provided media defendants in New York

(Footnote cont.)

B-16

\

Since Fleming is not a media defendant and Moore is not a

public figure, Gertz does not control the present case. Nev-

ertheless, we share the concern expressed in Gertz at the as-

se’ sment by juries of punitive damages "in wholly

unpredictable amounts bearing no necesssary relation to the

actual harm caused". 418 U.S. at 350. Therefore, we hold

that any instruction on punitive damages must be structured

upon the same standard of proof of "actual malice", as de-

fined in New York Times, applied in Gertz, and followed in

(Footnote cont.)

Times and Gertz are applicable to non-media defendants.

Several courts have refused to extend Gertz. Rowe v. Metz,

195 Colo. 424, 579 P.2d 83 (1978), rev'g 39 Colo. App. 20,

564 P.2d 425 (1977); Gengler-v. Phelps, 92 N.M. 465, 589 P.2d

1056 (1978); Harley-Davidson Motorsports, Inc. v. Markley, 279

Or. 361, 568 P.2d 1359 (1977); Calero v. Del Chemical Corp.,

68 Wis.2d 487, 228 N.W.2d 737 (1975). Other courts have re-

fused to distinguish between the protections afforded media

and non-media defendants. Bryan v. Brown, 339 So.2d 577,

583-84 (Ala. 1976), cert. denied, 431 U.S. 954 (1977); Millsa

v. Bankers Life Company, 35 [ll], App. 3d 735, 342 NEJd 335

(1976); Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d

688 (1976), affig 27 Md. App. 53, 341 A.2d 856 (1975); Ryder

Truck Rentals v. Latham, 593 S.W.2d 334 (Tex. Che kao.

1979). See J. Eaton, The American Law of Defamation

Through Gertz v. Robert Welch, Inc., and Beyond: An

Analytical Primer, 61 Va. L. Rev. 13495, 1417 (1975). pre-

dicting extension by the Supreme Court of Gertz to defama-

tion suits against non-media defendants where the defamatory

falsehood was published by the press.

B-17

rs cath ile EG 6 i at tS SEI FN et ate

ee ee

Burke, that is required in defamation actions against media

defendants, i.e., clear and convincing proof of knowledge of

falsity or reckless disregard for the truth.

{7] In conformity) with the general rule in tort

actions, no punitive damages may be awarded for slander or

libel unless compensatory damages are awarded. As an excep-

tion to the rule it is generally held that in a slander or libel

action, where the defamation is actionable per se, punitive

damages alone may be awarded. We approved the rule and

the exception in Burke, supra, 216 Va. at 805, 224 S.E.2d at

136. As the advertisement in the present case was not ac-

tionable per se, the exception is not applicable.

{8} Moore did not allege or prove that he suf-

fered any monetary loss. He did allege, however, that he had

been insulted, mortified, held up to ridicule, and humiliated by

the statement. We conclude that in libel actions not based

upon per se defamation, where knowing falsity or reckless dis-

regard for the truth is not shown, the compensatory damages

should be pansies to the actual damages proved to have been

sustained, but such damages should not necessarily be restrict-

ed to out-of-pocket loss. See fn. 10 supra. Therefore, we

B-18

hold thaf Moore is entitled to recover compensatory demages

upon proof of actual injury, including such elements as damage

to his reputation and standing in the community, embarrass-

ment, humiliation, and menta! suffering. "Special damages",

which under the common-law rule must be shown as a prereq-

uisite to recovery where the defamatory words are not action-

able per se, are not to be limited to pecuniary loss. To the

extent that language in Shupe may be construed to indicate

that emotional upset and embarrassment cannot constitute

"special damages", it is hereby modified.

For the reasons assigned, the judgment of the

trial court will be reversed and the case remanded for a new

trial consistent with the views herein expressed.

Reversed and remanded.

HARRISON, J., dissenting.

I find the jury's awards totalling $110,000 in this

ease to be shocking. It is inconceivable that a respected pro-

fessor, as is Mr. Moore, could have been damaged in the Uni-

versity community or elsewhere by the "advertisement" which

appeared at the behest of Mr. Fleming.

B-19

Np teh Te ene MOBS.

I attach little significance to the word "racism"

which heads the advertisement. The words "racism" and

"racist" are bandied about in our society with complete aban-

don. People of all races currently utilize these terms to

voice their innumerable real and imagined grievances. Indeed,

it would not be difficult to find a newspaper which contains a

complaint by one party against another for some action alleg-

edly grounded in "racism", or "reverse racism."

When we examine the advertisement inserted in

the papers and strip therefrom Fleming's self-laudatory and

hortatory language, we find that he takes a dim view of

Farmington members and tenured professors and feels that

without their financial security they would be more sympathet-

ic to the “have nots." The advertisement then makes a com-

parison between Thomas Jefferson and Professor Moore in

which the latter emerges "second best." Fleming attempts to

make his point by stating that Jefferson located his slave

quarters in sight of Monticello, whereas Moore does not want

black people in his sight. This apparently refers to Moore's

approval of the suggested location of a tree buffer or screen

between his property and Fleming's proposed development.

B-20

The advertisement is in bad taste and is ill-

mannered, short-tempered, and indiscreet. It is poorly con-

ceived and intemperate diatribe by an irate, disappointed, and

frustrated black real estate developer who believes that his

white opponent in a rezoning matter is not as concerned with

pollution as he is apprehensive over the prospect of a "pre-

dominantly black, lower-middle-income" development adjoining

his property. However, this reaction by Fleming was predict-

able and could well have been anticipated by Professor Moore

when he left the academic community and entered the realm

of real estate development and the controversial arena of zon-

ing. The language of the market place is not always re-

strained, reasonable, or temperate. It is often sharp and un-

fair, and sometimes raucous, biting, and cruel.

Although the indignation of Professor Moore is

understandable we should not allow the publication involved

here to be the predicate of an action for libel and an award

of damages. I would enter final judgment for the defendant.

B-21

APPENDIX C

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, IIL,

Plaintiff

v.

JAMES N. FLEMING,

Defendant

Law No. 976-L

October 21-22, 1982

Transcript page 608

a

MRS. HIRSCH: It is.

THE COURT: The verdict is in proper

form. "We, the jury, upon the law and evidence

find our verdict for the plaintiff, W. Bedford,

Ill against the defendant and award him compensa-

tory damages in the amount of one hundred thousand

dollars ($100,000.00) and punitive damages in the

amount of iwo hundred and fifty thousand dollars

($250,000.00), together with interest on the

amount of two hundred and fifty thousand dollars

($250,000.00) at the rate of twelve (12) percent

per year from January 16, 1976. Signed foreman."

Is this your verdict ladies and gentlemen of the

jury, so say you all?

(All jurors indicated in the affirma-

tive)

THE COURT: Is there any motion that the

jury be polled?

MR. CARTER: Yes, Your Honor.

THE COURT: All right, poll the jury.

If this is your verdict as read by the court, you

will answer yes.

(Jury polled at this time and all jurors

indicated yes)

THE COURT: The polling indicates’ the

verdict is the verdict of the jury. Ladies and

gentlemen of the jury, the court thanks’ you (for

your participation in this case. We realize it

has been a long and arduous experience for you but

APPENDIX D

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Il,

Plaintiff,

Vv.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

| April 21, 1983

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April 21, 1983

Mr. Thomas E. Albro

Smith, Taggart, Gibson & Albro

Attorneys at Law

P. O. Box 1585

Charlottesville, Virginia 22901

Mr. John Charles Thomas

Hunton & Williams

Attorneys at Law

P.O. Box 1535

Richmond, Virginia 23212

Mr. Gerald G. Poindexter

Poindexter & Poindexter

Attorneys at Law

P. O. Box 766

Surry, Virginia 23883

Re: W. Bedford Moore, III

Vv.

James N. Fleming

Gentlemen:

The Court again takes the opportunity to thank

counsel for their careful briefing and thoughtful arguments in

this case.

A careful review of the Court's rulings on mo-

tions made and objections taken in the light of the arguments

raised in your respective briefs leads us to the conclusion that

the Court's rulings were proper. Our review of the Court's

rulings on instructions finds those rulings proper, and further

that the jury was properly ins.:'¢ted.

On the question as to whether or not the evi-

dence supports the jury verdict, we conclude that it does.

Evidence of damages as the Supreme Court has stated in the

first trial of Moore v. Fleming should not necessarily be re-

stricted to out-of-pocket loss. "...Moore is entitled to recover

D-2

April 21, 1983

Thomas E. Albro, Esquire

John Charles Thomas, Esquire

Gerald G. Poindexter, Esquire

page 3

compensatory damages upon proof of actual injury including

such elements as damage to his reputation and standing in the

community, embarrassment, humiliation, and mental suffering."

We find that there is ample evidence of the elements of ac-

tual injury, when so defined.

In giving consideration to the implications of the

size of the verdict and specifically whether or not remittitur

should be allowed under the circumstances, we must consider

whether or not the jury was laboring under a misconception of

the law, or the evidence or whether there was some other

error or mistake, or if the jury was motivated by prejudice or

sympathy. In effect, we must consider whether or not the

jury verdict was based on the evidence. Viewing the evidence

in the light most favorable to the jury verdict, we have evi-

dence of deliberate and highly inflammatory false statements

interjected deliberately into a highly sensitive academic com-

munity where such charges were extremely damaging. Under

all the circumstances as revealed by the evidence we cannot

say that the jury verdict is unsupported.

We deny the motion to set aside the jury verdict

and to grant a new trial. The jury is the conscience of the

community. Apparently this was a jury that felt strongly

about the curse of racism and wished to make a strong state-

ment about the unjustified use of the epithet of racism.

We conclude that the Court should enter judgment

on the verdict in the full amount of the award including the

prescribed interest. We ask that Mr. Albro prepare the Order

and circulate it for endorsement by counsel of record, before

presentation to the Court.

Sincerely,

/s/F. W. Harkrader, Jr., Judge

F. W. Harkrader, dr., Judge

D-3

April 21, 1983

Thomas E. Albro, Esquire

John Charles Thomas, Esquire

Gerald G. Poindexter, Esquire

page 4

FWHjr/bl

ec: Shelby Marshall, Clerk

D-4

APPENDIX E

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Il,

Plaintiff,

Vv.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

dune 3, 1983

VIRGINIA:

IN THE CIRCUIT COURT OF ALBEMARLE COUNTY

W. BEDFORD MOORE, IL,

Plaintiff,

v. AT LAW NO. 976-L

JAMES N. FLEMING,

ee ee ee ee ee ee ee Se ee”

Defendant.

FINAL JUDGMENT ORDER

On October 21, 1982 came the parties, in person

and by counsel, and also a civil panel pursuant to a venire

facias heretofore issued. The venire was duly sworn and ex-

amined by the Court. One member of the venire was ex-

cused for cause by the Court and replaced by one additional

member who was duly sworn and examined. Counsel for the

Plaintiff and counsel for the Defendant each alternately struck

three members from the panel, leaving seven veniremen. De-

fendant moved to dismiss the venire so constituted on the

grounds that plaintiff struck the only two blacks on the venire

and that no blacks remained in the venire after such strikes,

which motion was overruled by the Court.

After the opening statements of counsel and the

presentation of Plaintiff's evidence, counsel for Defendant

moved to strike the Plaintiff's evidence, which motion was ar-

gued by counsel, duly considered by the Court and overruled,

to which ruling the Defendant objected and noted his excep-

tions. The Defendant then introduced his evidence and rested.

Plaintiff introduced evidence in rebuttal and rested, whereupon

Defendant renewed his motion to strike Plaintiff's evidence,

which motion was overruled by the Court.

Whereupon, the Court received proposed instruc-

tions from counsel for Plaintiff and counsel and Defendant,

granted some, amended some, and refused some. Counsel for

the parties noted their exceptions and objections regarding the

instructions. Thereupon, the Court instructed the jury and

counsel made their closing arguments.

The jury retired from the courtroom to consider

its verdict.

E-3

After due deliberation, the jury returned to the

courtroom with the following written verdict:

We, the jury, upon the law and the evidence, find

our verdict for the plaintiff, W. Bedford Moore,

Ill, against the defendant and award him compen-

satory damages in the amount of $100,000.00 and

punitive damages in the amount of $250,000.00,

together with interest on the amount of

$250,000.00 at the rate of 12% per year from

January 16, 1976.

Mimi E. Hirsch, Foreman.

Whereupon, the Defendant orally moved the Court

to set aside the verdict of the jury as contrary to the law

and the evidence and enter judgment for the Defendant, which

motion the Court denied with leave for Defendant to file a

written motion to set aside the verdict or in the alternative

for a new trial. Defendant thereafter filed a written Motion

To Set Aside Verdict And Enter Judgment for Fleming Or, In

the Alternative, For A New Trial together with supporting

memoranda. Defendant, in turn, filed a Memorandum tn Op-

position To Motion To Set Aside Verdict For A New Trial.

By letter dated February 25, 1983 the Court requested argu-

ment ore tenus from counsel for the parties limited to the

question of whether the Court should order remittitur. After

E-4

consideration, the Court denied Deiendant's written post-trial

Motion to which action of the court the Defendant objects.

The opinion of the Court is found in a letter to counsel

dated April 21, 1983 which is made a part of the record.

It is ADJUDGED, ORDERED and DECREED that

the Plaintiff have judgment against the Defendant, James N.

Fleming, in accordance with the aforesaid verdict of the jury

in the sum of Three Hundred Fifty Thousand Dollars

($350,000.00) and costs, and interest at the rate of twelve

(12) percent per annum on the sum of Two Hundred Fifty

Thousand Dollars ($250,000.00) from January 16, 1976.

It is FURTHER ADJUDGED, ORDERED AND DE-

CREED that, pursuant to Rule 5:9, Rules of the Supreme

Court of Virginia, the transcript of hearings ore tenus held on

January 29, 1982. October 7, 1982 and March 28, 1983, and

the transcript of the trial held on October 21 and 22, 1982,

be and the same are hereby made part of the record in this

case.

Defendant having indicated his intention to appeal

this order to the Supreme Court and having moved the Court

to suspend execution of the judgment entered herein, the

E-5

Court hereby ORDERS that execution of this judgment is sus-

pended so long as Defendant timely prosecutes the appeal and

thereafter so long as the matter is under consideration by the

Supreme Court, provided however that Defendant or someone

for him shall fine an appeal bond in the Office of the Clerk

of this Court within thirty (30) davs of the entry of this

order, with surety approved by the Judge of this Court, in

the penalty of two hundred fifty thousand Dollars ($250,000.00)

reciting this judgment, and Defendant's intention to present a

petition for appeal and the other conditions set forth in Sec-

tion 8.01-676(A) of the Code of Virginia (1950), as amended.

: ENTER:/s/F. W. Harkrader, Jr.

DATE: 6/3/83

I ask for this:

/s/Thomas E. Albro

~ Thomas E. Albro

Barrett E. Pope

Smith, Taggart, Gibson & Albro

105-109 E. High Street

Charlottesville, VA 22901

Counsel for plaintiff

Seen and objected to:

L. B. Cann, Il

Hunton & Williams

P. O. Box 1535

Richmond, VA 23219

Gerald G. Poindexter

P. O. Box 766

Surry, VA 23883

Counsel for defendant

APPENDIX F

SUPREME COURT OF VIRGINIA

JAMFS N. FLEMING,

Appellant,

~against-

W. BEDFORD MOORE, II,

Appellee.

Record No. 831446

June 7, 1984

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VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court

Building in the City of Richmond on Thursday the 7th day of

dune, 1984

dames N. Fleming, Appellant,

against Record No. 831446

Circuit Court No. 976-L

W. Bedford Moore, Il, Appellee.

From the Circuit Court of Albemarle County

Upon the petition of James N. Fleming an appeal

is awarded him from a judgment rendered by the Circuit

Court of Albemarle County on the 3rd day of June, 1983, in

a certain proceeding then therein depending, wherein W.

Bedford Moore, III, was plaintiff and the petitioner was defen-

dant.

And it appearing that an appeal bond in the pen-

alty of $250,000, conditioned according to law, has heretofore

been given in accordance with the provisions of section

8.01-676 of the Code, additional bond is required in the

amount of $460,000.

F-2

This appeal, however, is limited to the considera-

tion of assignments of error D, E, G and H which read as

follows:

D The jury's award is so excessive that it in-

dicates the jury was influenced by passion, prejudice or cor-

ruption, or misconceived or misconstrued the law or facts.

E The jury's award of prejudgment interest at

the rate of 12% per annum is contrary to law because

prejudgment interest is not allowable on punitive damages and,

further, because 12% exceeds the maximum allowable rate of

prejudgment interest.

G The trial court erred in refusing to instruct

the jury that, in order to find Fleming liable for compensato-

ry damages, it must find that Fleming knew what he was

publishing was false or had reckless disregard for whether or

not it was true.

H The trial court erred in refusing to strike

plaintiff's evidence on punitive damages because there was in-

sufficient evidence on which the jury could conclude that

Fleming knew what he was publishing was false or had reck-

less disregard for whether or not it was true.

F-3

ne On further consideration whereof, it is ordered

that the parts of the record to be printed or reproduced in

the appendix are to be limited to those parts of the record

germane to assignments of error No. D, E, G and H, and the

briefs to be filed shall be limited to such discussion as is rel-

evant to the assignments of error upon which this appeal is

awarded.

The petition for appeal is refused as to the re-

maining assignments of error.

A Copy,

Teste:/s/ Allen L. Lucy

Clerk

F-4

Supreme Court of Virginia

dames N. Fleming, Appellant,

against Record No. 831446

Circuit Court No. 976-L

W. Bedford Moore, I, Appeliee.

From the Circuit Court of Albemarle County

CERTIFICATE

Pursuant to Rule 5:30 of the Rules of the Su-

preme Court of Virginia, I, Allen L. Lucy, Clerk of the said

Court, do hereby certify that on June 7, 1984, an appeal was

awarded from a judgment rendered by the court below on

June 3, 1983, in the suit therein depending under the short

style of W. Bedford Moore, II v. James N. Fleming.

Additional bond is required in the penalty of

$460,000 in conformity with Code § 8.01-676.

This certificate, constituting the summons on ap-

peal, was this day mailed to the court below and to

D. Alan Rudlin, P.O. Box 1535, Richmond, Virginia 23212

L. B. Cann, Ill, P.O. Box 1535, Richmond, Virginia 23212

W. Jeffery Edwards, P.O. Box 1535, Richmond, Virginia 23212

F-5

Gerald G. Poindexter, P.O. Box 766, Surry, Virginia 23883

Counsel for Appellant

Thomas E. Albro, 105-109 East High Street, P.O. Box 1585,

Charlottesville, Virginia 22902

Barrett E. Pope, 105-109 East High Street, P.O. Box 1585,

Charlottesville, Virginia 22902

Counsel for Appellee

Given under my hand this 8th day of June, 1984.

/s/ Allen L. Lucy

Clerk

F-6

APPENDIX G

JAMES N. FLEMING,

Appellant,

~against-

W. BEDFORD MOORE, If,

Appellee.

Record No. 831446

February 1, 1985

229 Va. 783

(Pages 783-804, 839-58)

In one opinion, we decide four libel appeals. The

plaintiffs are private individuals, not public officials or public

figures. Three of the appeals are based on suits against

members of the print media. In the fourth appeal, the defen-

dant is a private person. Judgments for compensatory damag-

es have been entered against the defendant in each case. In

two cases, the judgments include awards of punitive damages.

The dominant issue to be decided in each case is

what standard of liability should govern an award of compen-

satory damages in a libel action in Virginia, given the devel-

opments in federal constitutional law on the subject of libel

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

(1964). Adjudication of this central question will spawn sub-

sidiary issues common to all the suits. In addition, the

awards of punitive damages generate issues common to those

two cases. The common questions of law will be analyzed in

the first sections of this opinion and, in succeeding sections,

the issues peculiar to a specific case will be adjudicated in

the section of the opinion devoted to such case.

G-2

L The Dominant Issue

A. Virginia Background

In Virginia, as in other states, the law of defa-

mation historically has protected a basic interest. The indi-

vidual's right to personal security includes his uninterrupted

entitlement to enjoyment of his reputation. Fuller v.

Edwards, 180 Va. 191, 197, 22 S.E.2d 26, 29 (1942). "Society

has a pervasive and strong interest in preventing and re-

dressing attacks upon reputation. Rosenblatt v. Baer, 383 U.S.

75, 86 (1966).

Under the general framework of defamation law

in Virginia prior to 1964, the beginning of a period when

major aspects of libel law became federalized, the defamed

private citizen had to prove only a false publication that in-

cluded words which were either actionable per se according to

certain fixed princip‘es, or, if not defamatory per se, words

which resulted in special damages to the party defamed. See

M. Rosenberg & Sons v. Craft, 182 Va. 512, 518, 29 S.E.2d

375, 378 (1944). Upon such publication,+ malice was inferred

1 No publication is required in an action brought under

the Virginia statute of insulting words, Code § 8.01-45. Davis

v. Heflin, 130 Va. 169, 107 S.E. 673 (1921).

G-3

and damage to reputation was presumed. See Note,

Defamation in Virginia - A Merger of Libel and Slander, 47

Va.L.Rev. 1116, 1117 (1961). And, unless the otherwise libel-

ous statement was privileged or the defendant could establish

its truth, Rosenberg v. Mason, 157 Va. 215, 228, 160 S.E. 190,

195 (1931), the publisher was liable for compensatory damages.

Upon proof of common-law actual or express malice, the

plaintiff was entitled to an award of punitive damages.

James v. Haymes, 160 Va. 253, 263, 168 S.E. 333, 337 (1933).

Commencing in 1964, however, a series of deci-

sions of the United States Supreme Court caused significant

changes in the law of libel.

B. Pertinent Supreme Court Decisions

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

Court determined for the first time the extent to which the

constitutional protections of speech and press limit a state's

power to award damages in a libel action brought by a public

official against critics of his official conduct. 376 U.S. at

256. The Court decided that the rules of law applied by the

Alabama state courts were constitutionally deficient for failure

G-4

to provide safeguards for freedom of speech and of the press

that are required by the First and Fourteenth Amendments in

a libel action brought by such a public official. Id. at 264.

The Court held that "[t]he constitutional guarantees

require . .. a federal rule that prohibits a public official

from recovering damages for a defamatory falsehood relating

to his official conduct unless he proves that the statement

was made with ‘actual malice’ - that *~ with knowledge that

it was false or with reckless disregard of whether it was

false or not." Id. at 279-80. In Garrison v. Louisiana, 379

U.S. 64 (1964), the Court applied the New York Times "actual

malice" standard to state criminal libel statutes that imposed

sanctions for criticism of official conduct of public officials.

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

(1966), the Court held "that a ‘public figure' who is not a

public official may .. . recover [compensatory and punitive]

damages for a defamatory falsehood whose substance makes

substantial danger to reputation apparent, on a showing of

highly unreasonable conduct constituting an extreme departure

from the standards of investigation and reporting ordinarily ad-

hered to by responsible publishers." Id. at 155. In holding

G-5

that the standard had been met by the plaintiff in Butts, but

not in the companion case of Associated Press v. Walker (de-

cided in the same opinion), the Court rejected the defendant's

contention that it could not be subjected to an assessment of

punitive damages. Justice Harlan, writing for the majority,

stated: "Where a publisher's departure from standards of press

responsibility is severe enough to strip from him the constitu-

tional protection our decision acknowledges, we think it entire-

iy proper for the State to act not only for the protection of

the individual injured but to safeguard all those similarly situ-

ated against like abuse." Id. at 161.

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

the Court identified evidence that may be employed to estab-

lish New York Times “actual malice." The majority, through

Justice White, noted that "evidence of either deliberate falsifi-

cation or reckless publication ‘despite the publisher's awareness

of probable falsity' was essential to recovery by public offi-

cials in defamation actions." Id. at 731. The Court then

listed certain acts which show the "recklessness" aspect of

"actual malice": intentional fabrication by a defendant of

facts or communications; basing an article wholly upon an

G-6

unverified anonymous telephone call; printing allegations so

inherently improbable that only a reckless person would put

them in circulation; and publication of an article despite obvi-

ous reasons to doubt the truth and veracity of the informant

upon whom the article relies for accuracy. Id. at 732. The

Court said that failure to investigate will not in itself estab-

lish bad faith, id. at 733, but stated that a "defendant in a

defamation action brought by a publie official

cannot .. . automatically insure a favorable verdict by testi-

fying that he published with a belief that the statements were

true." Id. at 732.

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

(1971), a ,iurality of the Court, through Justice Brennan, ex-

tended the New York Times “actual malice” standard to publi-

cations relating to all matters of public or general concern,

irrespective of the public or private nature of the plaintiff.

In rejecting the suggested distinction between public officials

and public figures on the one hand and private individuals on

the other, Justice Brennan focused instead on society's interest

in learning about issues of public or general concern. Thus,

under Rosenbloom, once a trial court determined that the

G-7

alleged libel involved a matter of public or general concern,

the fact finder should then consider whether New York Times

malice had been proved, paying no heed to the plaintiff's sta-

tus.

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

418 U.S. 323 (1974), the Supreme Court expressly repudiated

its holding in Rosenbloom. One commentator states that the

Gertz majority sensed "the Rosenbloom plurality opinion had

nearly destroyed the common law of defamation. .. ."

J. Eaton, The American Law of Defamation Through Gertz v.

Robert Welch, Inc., and Beyond: An Analytical Primer, 61

Va.L.Rev. 1349, 1409 (1975).

In Gertz, a Chicago policeman had shot ‘and killed

a youth. Gertz, a reputable attorney, was employed to repre-

sent the youth's family in civil litigation against the officer.

The defendant published, in its monthly magazine giving the

views of the John Birch Society, false statements about Gertz.

The publication implied that Gertz had a criminal record and

labeled him a "Leninist" and "Communist-fronter."

Justice Powell, writing for the majority, articulat-

ed several important holdings defining "the proper

G-8

accommodation between the law of defamation and the free-

doms of speech and press protected by the First Amendment."

418 U.S. at 325. First, the Court reaffirmed its rulings in

New York Times and Butts stating that public officials and

public figures may recover for defamation only upon clear and

convincing proof of New York Times malice. Second, the

Court made clear that all persons, public or private, may re-

cover presumed or punitive damages only upon clear and con-

vincing proof of New York Times malice.

Third, and most important for purposes of the

cases at bar, the Court held "that, so long as they do not

impose liability without fault, the States may define for them-

selves the appropriate standard of liability for a publisher or

broadeaster of defamatory falsehood injurious to a private in-

dividual." Id. at 347. Justice Powell stated that this ap-

proach establishes an equitable boundary between the

competing interests involved. "It recognizes the strength of

the legitimate state interest in compensating private individu-

als for wrongful injury to reputation, yet shields the press and

broadcast media from the rigors of strict liability for defama-

tion." Id. at 348.

G-9

‘The Court, however, expressly limited the applica-

bility of a fault standard. Such limitation has not been suffi-

ciently emphasized in many of the decisions and comments

based on Gertz, but we think recognition of the limitation is

essential to an accurate analysis of the decision. The Court

said, quoting from Butts, the applicability of a fault standard

must be restricted to circumstances where "the substance of

the defamatory statement 'makes substantial danger to reputa-

tion apparent.™ Id. Continuing, the Court stated: "Our in-

quiry would involve considerations somewhat different from

those discussed above if a State purported to condition civil

liability on a factual misstatement whose content did not warn

a reasonably prudent editor or broadcaster of its defamatory

potential." Id.; Time, Inc. v. Firestone, 424 U.S. 448, 464-65

(1976) (Powell, J., concurring).

In addition, the Court said that the State's inter-

est in compensating private individuals for injury to reputation

extends no further than compensation for actual injury, which

may include impairment of reputation and standing in the

community, personal humiliation, mental anguish and suffering,

as well as out-of-pocket loss. Gertz, 418 U.S. at 350.

G-10

Finally, the Court rejected the Rosenbloom plurality's require-

ment that judges must consider whether publications address

issues of "general or public interest," stating that such a test

"for determining the applicability of the New York Times

standard to private defamation actions inadequately serves both

of the competing values at stake." Id. at 346.

In Herbert v. Lando, 441 U.S. 153 (1979), the Su-

preme Court rejected a plea "that the baled’ ‘seraate in New

York Times should now be modified to provide further pro-

tections for the press when sued for circulating erroneous in-

formation damaging to individual reputation." Id. at 169.

The Court, through Justice White, noted that the 1964 New

York Times decision which "was widely perceived as essentially

protective of press freedoms," has been repeatedly affirmed in

succeeding cases. Id. The Court also pointed out, however,

citing Firestone and Gertz, that "the Court has reiterated its

eonviction--reflected in the laws of defamation of all of the

States—that the individual's interest in his reputation is also a

basic concern." Id.

G-11

C. Pertinent Virginia Decisions Since New York Times

Sanders v. Times-World Corp., 213 Va. 369, 192

S.E.2d 754 (1972), was decided after New York Times and

Rosenbloom, but before Gertz. There, for the first time, we

applied the New York Times malice standard to a libel case

involving a private person arising from matters of "public or

general concern," as required by Rosenbloom. "In Rosenbloom

and Sanders, the relevant test was not the status of the

plaintiff involved but rather the events which were the subject

of the publication." Newspaper Publishing Corp. v. Burke, 216

Va. 800, 803, 224 S.E.2d 132, 135 (1976). In Sanders, we

cited three earlier Virginia cases, from 1961, 1967, and 1970

respectively, for the proposition that, where defendants' state-

ments were qualifiedly privileged, the plaintiff bears the bur-

den to establish actual malice. The Sanders decision was

based, nevertheless, on the federal standards of New York

Times and Rosenbloom.

Newspaper Publishing Corp. v. Burke, supra, was

the first libel case we decided after Gertz. Analyzing Gertz,

we held that the trial court erroneously instructed the jury, in

violation of the Gertz admonition, that the newspaper

G-12

defendant could be adjudged liable without fault to the private

plaintiffs. Additionally, the Court determined that the trial

court incorrectly told the jury that an award of punitive dam-

ages could be premised upon a finding of common-law malice

rather than New York Times "actual malice." Furthermore,

while recognizing that we could define our own standard for

recovery of actual, compensatory damages as authorized by

Gertz, we chose not to formulate a Virginia standard in that

case. We noted that the jury did not award actual damages,

only punitive damages, and termed the task of fixing a

Gertz-approved standard "unnecessary." 216 Va. at 804, 224

S.E.2d at 136.

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

(1981) (hereinafter Fleming I), a suit against a non-media de-

fendant and the precursor to the instant case of the same

name, we decided that the publication was not defamatory per

se; that the plaintiff, a private individual, did not forfeit his

2 For a definition of common-law malice, see also Preston

v. Land, 220 Va. 118, 120-21, 255 S.E.2d 509, 511 (1979), a

post-Gertz case of slander among private individuals in which

the federal libel standards were not in issue.

G-13

private status by speaking at public hearings involving land use

proposals; that because the plaintiff Moore was not a public

figure, he was not required to show New York Times malice

as a prerequisite to recovery of compensatory damages, id. at

892, 275 S.E.2d at 637; that punitive damages may not be

awarded without a tandem award of compensatory damages,

unless the libel involved was "actionable per se," id. at

893-94, 275 S.E.2d at 638; and, that in libel actions not based

upon per se defamation where New York Times malice is not

shown, compensatory damages must be limited to actual injur-

ies sustained. We decided, however, that actual injury was

not confined to pecuniary loss but included such elements as

damage to reputation and standing in the community, embar-

rassment, humiliation, and mental suffering. We modified lan-

guage contained in Shupe v. Rose's Stores, 213 Va. 374, 192

S.E.2d 766 (1972), to the extent that Shupe may have indi-

cated that emotional upset and embarrassment cannot consti-

tute "special damages." 221 Va. at 894, 275 S.E.2d at 639.

In Fleming I, we further decided that Gertz did

not control because the Gertz rule was not explicitly extended

to non-media defendants. We stated, nevertheless, that we

G-14

share the Gertz concern with the assessment by juries of pu-

nitive damages "in wholly unpredictable amounts bearing no

necessary relation to the actual harm caused.™ Id. at 893,

275 S.E.2d at 638, quoting Gertz, 418 U.S. at 350. Thus, we

held in Fleming I, a suit by a private individual against a

non-media defendant, that a recovery of punitive damages

must be based upon the New York Times actual malice stan-

dard that is applicable to media defendants, that is, clear and

convincing proof of knowledge of falsity or reckless disregard

for the truth.

D. The Virginia Standard of Fault for Compensatory Damages

The parameters within which we must fix the

Virginia standard as a matter of state law have been set

forth in our prior discussion of Gertz. The plaintiffs in the

present appeals argue for a negligence standard. Generally,

the defendants assert that a defamed private individual should

be required to establish New York Times malice to recover

actual, compensatory damages in this State. In a brief

amicus curiae filed in one of the media appeals, the Virginia

Press Association, Inc., argues that "a negligence standard is

G-15

no standard at all" and that such a requirement "simply does

not provide the protection needed to ensure a free and open

press." Asserting that the matters involved in these four ap-

peals involve issues of public concern, the defendants contend

that our pre-Gertz Sanders decision is controlling and that lia-

bility for the alleged defamations requires proof of New York

Times "actual malice." We do not agree.

The Supreme Court in Gertz left little doubt that

it expected many of the states to adopt a negligence stan-

dard. Justice Powell, while noting that allowance of presumed

damages would unnecessarily exacerbate the danger of media

self-censorship, stated that the policy considerations concerning

punitive-damage awards are "wholly irrelevant to the state in-

terest that justifies a negligence standard for private defama-

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

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

private person upon a showing of negligence, as contrasted

with a showing of willful or reckless disregard... ." Id. at

353. Chief Justice Burger, dissenting, said that the majority

"introduces the concept that the media will be liable for neg-

ligence in publishing defamatory statements with respect to

G-16

[ordinary private citizens]. Id. at 355. Justice Brennan, dis-

senting, forecast adoption of "a reasonable-care standard" by

many states as the "probable result of today's decision." ld.

at 366. Justice White, dissenting and deploring the “additional

burden on the plaintiff of proving negligence or other fault,"

stated that "[uJnder the new rule the plaintiff can lose, not

because the statement~is true, but because it was not negli-

gently made." Id. at 376.

Certainly, despite the Supreme Court's forecasts,

we properly may choose to adopt as a matter of state law a

stricter standard than ordinary negligence. We will not do so.

Indeed, while we did not explicitly fix the standard in

Fleming I, we implicitly indicated that a level of liability less

than New York Times malice was all that was required. We

said: "Therefore, [the plaintiff] was not required to show, as

a prerequisite to recovery of compensatory damages, that

Fleming acted with malice that met the New York Times

standard." 221 Va. at 892, 275 S.E.2d at 638.

We hold, therefore, that in an action brought by

a private individual to recover actual, compensatory damages

for a defamatory publication, the plaintiff may recover upon

G-17

proof by a preponderance of the evidence that the publication

was false, and that the defendant either knew it to be false,

or believing it to be true, lacked reasonable grounds for such

belief, or acted negligently in failing to ascertain the facts on

which the publication was based. Under this standard, truth

no longer is an affirmative defense to be established by the

defendant. Instead, the plaintiff must prove falsity, because

he is required to establish negligence with respect to such

falsity. In addition, we hold that such liability may be based

upon negligence, whether or not the publication in question

relates to a matter of public or general concern.

The application of this negligence standard is ex-

pressly limited, however, to circumstances where the defama-

tory statement makes substantial danger to reputation appar-

ent. The trial judge shall mate such determination as a

matter of law. If, on the other hand, no substantial danger

to reputation is apparent from the statement in issue, New

York Times malice must be established to recover compensato-

ry damages.

Nothing in the public policy of the Commonwealth

or in our prior decisions requires adoption of a standard

G-18

higher than one of ordinary negligence. The Constitution of

Virginia does not mandate embracement of a more stringent

standard. Article I, § 12 provides, in part, "that any citizen

may freely speak, write, and publish his sentiments on all sub-

jects, being responsible for the abuse of that right... ."

That provision recognizes the balance to be struck between

the right of free expression enjoyed by the individual and the

press on the one hand and the right of defamed individuals to

hold the speakers "responsible" for damage to reputation on

the other. See I A. Howard, Commentaries on the

Constitution of Virginia, at 249-59 (1974). And, as we already

have said, our Sanders decision is not controlling, because it

was decided before Gertz and was based on Rosenbloom, nor

are any of our other cases.

Moreoever, we think that a negligence test strikes

a proper balance between the rights of the news media and

the rights of private individuals. As noted in Gertz, the pri-

vate individual is more vulnerable to injury to reputation in-

flicted by defamatory falsehood than are public officials and

public figures who ordinarily "enjoy significantly greater access

to channels of effective communication and hence have a

G-19

more realistic opportunity to counteract false statements than

private individuals normally enjoy." Gertz, 418 U.S. at 344.

Even though “the truth rarely catches up with the lie," id.

n.9, the opportunity for rebuttal is more readily available to

the public person. Consequently, the state interest in pro-

tecting the private individual is greater than in the case of a

non-private person.

In addition, we believe that the negligence stan-

dard will not result in self-censorship, as the media defendants

argue, and that the duty of reasonable care is an acceptable

burden for the press to bear. After all, the concept of neg-

ligence is fundamental to the imposition of tort liability in

Virginia in the great majority of legal relationships that are

created daily, and we have not been convinced that the pub-

lisher of the defamatory falsehood should be elevated to a

preferred status for the assessment of liability for the harm

caused by such a tort. Neither the intentional lie nor the

negligent error substantially advances society's interest in unin-

hibited and robust debate. See id. at 340.

Also, the limitations we have placed on the rule

will serve to insulate the publisher from liability based on a

G-20

publication the content of which does not warn a reasona ly

prudent editor or broadcaster of its defamatory potential. In

such a case, New York Times malice must be established in

order to recover compensatory damages. The mere negligent

error or the careless misstatement of fact which, on its face,

does not appear to be defamatory will not result in liability

for compensatory damages being imposed on the publisher.

Finally, the standard we adopt today is in accord

with the rule embraced by a substantial number of the states

that have decided the issue since Gertz. See E. Collins and

J Drushal, The Reaction of the State Courts to Gertz v.

Robert Welch, Inc., 28 Case W.Res.L.Rev. 306 (1978). To

date, at least 30 states and the District of Columbia have

adopted a negligence standard in media cases involving private

persons, either after discussing the issue or without discussing

the question.> Also, two federal courts interpreting Virginia

3 The cases that discuss the issue are: Peagler v. Phoenix

Newspapers, Inc., 114 Ariz. 309, 560 P.2d ine (1977); Dodrill

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

(1979), cert. denied, 444 U.S. 1076 (1980); Phillips v. Eveni

Star News r Co., 424 A.2d 78 (D.C. 1980), cert. denied,

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

(Footnote cont.)

G-21

law after Gertz anticipated that we would adopt a negligence

standard. See General Products Co. v. Meredith Corp., 526 F.

(Footnote cont.)

So.2d 376 (Fla. App. 1982); Cahill v. Hawaiian Paradise Park

Corp., 56 Hawaii 522, 543 P.2d 1356 (1975); Troman v. Wood,

-2d 184, 340 N.E.2d 292 (1975); Gobin v. Globe Publishing

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

Courier-Journal & Louisville Publishing Co., 623 S.W.2d 882

(Ky. 1981), cert. denied, 456 U-S. 5 (1982); Wilson v.

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

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

v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d

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

(1978); McCusker v. Valley News, 121 N.H. 258, 428 A.2d

493, cert. denied, 454 U.S. 1017 (1981); Marchiondo v. Brown,

98 N.M. 394, 649 P.2d 462 (1982); Thomas H. Maloney &

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

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

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

Publishing Co., 278 S.C. 12, 292 S.E.2d 23, cert. denied, 459

U.S. o44 (1982); Memphis Publishing Co. v. Nichols, 569 S.W.2d

412 (Tenn. 1978); Foster v. Laredo Newspapers, Inc., 541

S.W.2d 809 (Tex. 1976), cert. denied, OR) ne 1123 (1977);

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

King Broadcasting Co., 86 Wash.2d 439, 546 P.2d 81 (1976);

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

v. Mertz, 106 Wis.2d 636, 318 N.W.2d 141, cert. denied, 459

U.S. 883 (1982).

The cases that do not discuss the issue are: Browning

v. Birmingham News, 348 So.2d 455 (Ala. 1977); Corbett v.

Register Publishing Co., 33 Conn. Supp. 4, 356 A.2d 472

CoFs)s Savannah News-Press Div. v. Whetsell, 149 Ga. App.

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

563 P.2d 395, cert. denied, 434 U.S. 891i (1977); Wheeler v.

Green, 286 Or. 99, 593 P.2d 777 (1979); DeCarvalho v.

DaSilva, 414 A.2d 806 (R.I. 1980); Colombo v. Times-Argus

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

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

G-22

Supp. 546 (E.D. Va. 1981); Mills v. Kingsport Times-News, 475

F. Supp. 1005 (W.D. Va. 1979). And the drafters of. the

Restatement responded to Gertz by adopting a negligence

standard for the media defendant who defames a private per-

son or a public person in a matter unrelated to his public ca-

pacity. Restatement (Second) of Torts § 580B (c) (1977).

See generally R. Smolla, Let the Author Beware: The

Rejuvenation of the American Law of Libel, 132 U.Pa.L.Rev.

1 (1983).

Il. Subsidiary Issues

Because one of the present appeals involves a

non-media defendant, the question arises whether the negli-

gence standard is limited to media defendants, in which case

the non-media defendant would remain subject to the rule of

strict liability. Gertz involved a media defendant and the

Court's opinion did not address the instant issue. We hold,

however, as a matter of state law that the negligence stan-

dard should be applicable to media and non-media defendants

alike.

G-23

The logie of such a conclusion is compelling. It

would indeed be bizarre to hold as a matter of tort law that

individuals are liable without fault while the medial is liable

only upon a showing of negligence. See Jacron Sales Co. v.

Sindorf, 276 Md. 580, 350 A.2d 688, 695 (1976). The media,

being composed of professionals and caps»le of causing much

greater damage because of wider distribution of the communi-

cation, are more cognizant of the risk of liability and more

likely to take appropriate precautions. The private-individual

defamer, however, whose utterance is likely to cause less

harm, ordinarily will not realize the potential liability resulting

from his communication and will fail to take similar precau-

tions. See Restatement (Second) of Torts § 580B, comment e

(1977). Contra Denny v. Mertz, 106 Wis.2d 636, 659-61, 318

N.W.2d 141, 152-53 (1982). Neither policy nor reason supports

different treatment of the respective types of defendants.

See Jacron Sales Co., 276 Md. at 593-94, 350 A.2d at 696.

Furthermore, in Fleming I, we applied the consti-

tutional privilege of New York Times, Butts, and Gertz to a

non-media defendant where recovery of punitive damages was

sought. We now take the next logical, consistent step and

G-24

apply the Gertz-authorized negligence standard to non-media

defendants where recovery of compensatory damages is sought.

Another subsidiary issue that arises from estab-

lishment of a negligence standard for compensatory damages is

the current status of the common-law qualified privileges in

Virginia. Unlike some jurisdictions, Virginia does not permit a

qualified privilege to be defeated upon a showing of mere

negligence. We require proof of common-law malice, that is,

behavior actuated by motives of personal spite, or ill-will, in-

dependent of the occasion on which the communication was

made. Story v. Newspapers, Inc., 202 Va. 588, 590, 118

S.E.2d 668, 670 (1961). This being a more stringent standard

than negligence, the qualified privileges survive in Virginia.

This means, of course, that the defendant may still avoid lia-

bility based on qualified privilege even though the negligence

standard is met by the plaintiff. When a qualified privilege

is established and not defeated by a plaintiff's evidence of

common-law malice, the negligence standard is subsumed in

the higher standard and it is of no consequence that the

plaintiff might have met the lower standard of negligence.

Jacron Sales Co., 276 Md. at 600, 350 A.2d at 699-700.

G-25

The other subsidiary issue involves the scope of

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

Consumers Union of the United States, Inc., 104 S.Ct. 1949

(1984), the media defendants assert that, in a case raising

First Amendment issues, an appellate court has an obligation

to make an independent examination of the entire record in

order to insure that the judgment of the trial court does not

constitute a forbidden intrusion on the exercise of free ex-

pression. We agree that an appellate court in Virginia must

conduct such independent examination of the whole record on

the issue of punitive damages or where New York Times mal-

ice must be established, but not on the question of compensa-

tory damages when New York Times malice need not be prov-

en.

Bose primarily is concerned with the application

of Rule 52(a), Federal Rules of Civil Procedure, which fixes a

"elenrly erroneous" standard for federal appellate review of

findings of fact. Nevertheless, the Supreme Court in First

Armendment cases arising in state courts repeatedly has held

that the independent examination contended for is required on

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

G-26

Amant, 390 U.S. at 732-33. In Bose, the Court held: "The

requirement of independent appellate review reiterated in New

York Times v. Sullivan is a rule of federal constitutional law."

104 S.Ct. at 1965. Consequently, because we apply the feder-

al constitutional rule of New York Times to the

punitive-damage issue in a State defamation suit, we likewise

apply the federal constitutional rule of independent appellate

examination to such an issue.

Thus, we hold that an appellate court in Virginia,

on the issue of punitive damages or where New York Times

malice must be proven, must independently decide whether the

evidence in the record on appeal is sufficient to support a

finding of New ‘York Times "actual malice" by clear and con-

vincing proof. 104 S.Ct. at 1965. This does not mean that

the reviewing court may disregard the determinations made on

credibility of witnesses by the trier of fact or that the pre-

sumption of correctness that attaches to factual findings is to

be discounted. Id. at 1959. The rule simply means that ap-

pellate judges in such a case must examine the facts perti-

nent to the punitive-damage award and exercise independent

judgment to “determine whether the record establishes actual

malice with convincing clarity." Id. at 1967.

G-27

In contrast, however, on the issue of compensato-

ry damages in libel cases when New York Times malice need

not be proven, we will continue to follow the established

standard of review mandated by Code § 8.01-680, that is, "the

judgment of the trial court shall not be set aside unless it

appears from the evidence that such judgment is plainly wrong

or without evidence to support it." The reason we do not

embrace Bose on this issue is that the Bose mandate of inde-

pendent examination is bottomed on the obligation of re-

viewing judges to assure that governing federal constitutional

law has been applied properly. The negligence standard for

compensatory damages that we have adopted is not a matter

of governing federal constitutional law; rather, within the

parameters authorized by Gertz, we have fixed the standard

as a matter of state law. Accordingiy Bose, as well as the

federal decisions on which it is based, is not controlling on

this issue.

G-28

VL Fieming v. Moore

In January of 1977, appellee W. Bedford Moore,

Ill, sued appellant James N. Fleming for libel arising from an

advertisement published a year earlier in The Cavalier Daily,

a student newspaper circulated on the campus of the Universi-

ty of Virginia and in the Albemarle County area. Fieming

was a black real estate developer and Moore was a white

University professor. The dispute, and resulting publication

entitled "Racism," arose from efforts by Fleming, and others,

to develop land in the vicinity of Moore's home situated in

the County.

Following a 1977 trial, the court below entered

judgment on a jury verdict awarding Moore $10,000 compensa-

tory damages and $100,000 punitive damages. On appeal, we

reversed the judgment and remanded the case for a new trial

on all issues. The 1981 Fle» ing I decision has been summa-

rized in section KC) of this opinion.

The new trial was held in October of 1982 and

resulted in a jury verdict in favor of the plaintiff for

$100,000 compensatory damages and $250,000 punitive damages

plus 12 per cent interest on $250,000 from January 16, 1976,

G-29

upon which the trial court entered judgment in June of 1983.

We awarded the defendant another appeal, limited to questions

concerning the standard of fault to be applied for recovery of

compensatory damages, sufficiency of the evidence to support

the punitive award, excessiveness of both awards, and the cor-

rectness of prejudgment interest on the punitive award. The

evidence presented during the retrial differs to some degree

from that produced at the first trial.

In the mid-1970s, Fleming, a County native and a

successful realtor-appraiser, joined three white business associ-

ates in an effort to develop approximately 127 acres of land

in the County for residential purposes. The site was within

the immediate watershed of the Rivanna Reservoir, a source

of drinking water. The planned unit development, called "Ev-

ergreen," was to house lower and middle-income families of

both races. Moore, a resident of the Charlottesville area

since 1947, was an assistant professor in the Humanities Divi-

sion of the University's School of Engineering and Applied Sci-

ence. Moore lived near the development site. His residence

was named "Shack Mountain" and was described as a

Twentieth Century reproduction of an Eighteenth Century

G-30

Jeffersonian pavilion; it was a "small version" of Monticello,

not a "replica."

During a period of several years, defendant

Fleming sougnt unsuccessfully to obtain a special permit from

county authorities for use of the agriculturally zoned land.

Plaintiff Moore and others opposed the development because of

concern over the proposed high density (initially, 804 dwelling

units were planned) and because of fear that the reservoir

would be polluted.

A series of public hearings was held before the

Planning Commission and the Board of Supervisors. The plain-

tiff and others spoke in opposition to the several plans that

were submitted by the defendant. The Planning Commission

staff recommended that the first Evergreen proposal be re-

jected mainly because the planned density was too great. At

the time, pollution of the reservoir was also of considerable

concern to the planners. The Planning Commission and the

Board of Supervisors rejected defendant's first proposal, mainly

because of the high density projection. The second plan for

Evergreen, with a lower proposed density, was likewise turned

down by the County because of conservation and environmental

G-31

factors relating to the reservoir. Eventually, the Board of

Supervisors in early 1976 imposed a moratorium on construc-

tion within the reservoir watershed until a study in progress

dealing with pollution of the reservoir could be completed.

The jury has found on disputed facts that race was not a

factor in any decisions made by County officials relating to

Evergreen and that the plaintiff was not motivated by racial

considerations in his opposition to defendant's development.

Nevertheless, as the land-use controversy devel-

oped, defendant thought that his plans were being frustrated

solely on racial grounds. He noticed that white developers

were obtaining approval of their plans while his were being

denied. Also, he assumed that citizen groups opposing the de-

velopment were conspiring against him because he was black.

In addition, the planning staff had recommended a 100-foot

tree buffer to separate the developed area from the Shack

Mountain property. The defendant believed that the plaintiff

was a leading opponent of Evergreen and that Moore was re-

sponsible for imposition of the condition requiring the buffer.

Fleming thought Moore was attempting to have the buffer

placed on Fleming's property and that Moore somehow would

G-32

take advantage of a racially restrictive covenant in prior

deeds to the property.

Consequently, defendant drafted the publication in

question. He arranged for it to appear as a paid advertise-

ment in two January 1976 issues of The Cavalier Daily, a

campus newspaper read by approximately 15,000 persons. The

advertisement is copied verbatim in Fleming I, 221 Va. at

887-88 n.3, 275 S.E.2d at 634-35 n.3. It was headlined "RAC-

ISM" and "Signed: James N. Fleming."

After stating that the author had endeavored to

provide pleasant housing for "working people," the item said:

"I do not expect any

Farmington members to buy my

houses. The tenured

position-holders who live off

the public dole at the expense

of the working people are al-

ready well-housed, and could

not be expected to live in a

racially-integrated neighborhood,

anyhow.

"There is a great deal

of irony in the fact that here

in Mr. Jefferson's country 200

years after his vision of

situating his beloved Monticello

upon the hilltop overlooking the

developing community we have

a replica of Monticello upon

G-33

the hill overlooking my proper-

ty which is occupied by a man

who wants to deprive working

people of the same

opportunities that Mr. Jefferson

sought for them. Mr.

Jefferson even located his

slaves' quarters down the hill

from his house, but Bedford

Moore, the occupant of little

Monticello does not want any

black people within his sight."

The advertisement then referred to a "great conflict" between

the "haves and the have-nots" and stated that "we have cre-

ated too much financial security for the tenured segment of

the economic community whose greed is repeatedly shown by

their expression of T've got mine — too bad about you'.”

Continuing, the author wrote that he was a "lover

of liberty" and could not stand by to "see the have-nots op-

pressed by the no-growth people who are living off of our

work." He next stated:

"I know that this Country did

not achieve the highest living

standard in the world by

no-growth or by oppression of

the working man, and yet

today the opportunity to im-

prove one's living standard is

being violently opposed by the

same people who oppose my

proposed neighborhood.

G-34

"Pollution of the reser-

voir is being used as the cur-

rent excuse to foster

no-growth. The solution, of

course, is to remove the guar-

anteed incomes of these greedy

people and put them in the

position of seeing the world

through the eyes of one

seeking the opportunity to im-

prove his or her living stan-

dard. Only then would they

admit that the pollution excuse

is a sham."

The advertisement concluded: "I will develop Evergreen, and

a lot of people will benefit from it."

Relying on Bose Corp. v. Consumers Union of the

United States, Inc., the defendant contends we should make an

independent examination of all issues in this case to insure

that the judgment below does not constitute a forbidden intru-

sion on the exercise of free expression. In addition, Fleming

argues that the advertisement related to a matter of vital

public concern, a land-use controversy, and that New York

Times “actual malice" is the proper standard of liabiity for

compensatory damages. We have addressed these issues al-

ready and no further discussion is necessary to explain our re-

jection of the cententions. The trial court was correct in

G-35

applying a negligence standard in this case, and in using the

principle in a suit against a non-media defendant.

We will consider next the question whether the

award of compensetory damages is excessive. The defendant

argues that the award shocks the conscience in that it bears

no relationship to the loss actualiy sustained by Moore.

Moore read the advertisement on both days it

was published. In describing the effect of the publication,

Moore testified that race had no bearing on his opposition to

Evergreen. Rather, he was concerned about pollution of the

reservoir, preserving his privacy, and protecting the historic

character of his home, which had been placed on the national

and state registers of historic places. Consequently, he

testified, he was "very keenly" embarrassed and humiliated by

the racial attack because he had been "brought up with sort

of innocence on the whole subject." He stated that the pub-

lication made him conscious of race in a way he deplored be-

cause he had been taught to be “color blind" and "considerate"

in his dealings with all other persons.

G-36

Moore testified: "I was seriously upset to have a

man that I disagreed with in public meetings go around behind

me and put into the University student newspaper such a ma-

licious attack on me, my character. This was done in front

of my colleagues at the University, students, black and white."

Describing his concern that the item had been placed in the

student newspaper as opposed to some other publication, Moore

said: "It was very near home and concerned me very much

indeed. I felt that he had put a gap in my honor that could

only be restored by vindication of my fellow citizens on this

jury."

The evidence showed that during 1975 and 1976,

a number of racial concerns confronted the University. The

school was trying to attract minority students and faculty.

Tension had developed on campus because of the University

President's membership in an exclusive private club, Farm-

ington, and there were demands that he resign his office.

The plaintiff proved that publication of the advertisement in

the midst of this turmoil adversely affected his teaching and

his relationship with his students of both races. Dr. Edgar F.

Shannon, Jdr., President of the University from 1959 to 1974,

G-37

testified that the perceived racial attitudes of a professor are

important to his relations with his students and materially af-

fect the atmosphere in the classroom. Shannon indicated that

he had never known Moore to do or say anything degrading to

black persons or the black race.

Testimony showed that Moore was "very upset" by

the publication and felt he had experienced "a terrible wrong."

The evidence showed that other faculty members at the Uni-

versity as well as students made repeated inquiries about

Moore and whether the statements in the item were true.

Summarizing the damage he suffered, Moore

testified, "It's not an experience I would visit on most people.

It's very unhappy." Moore said the humiliation had not less-

ened with the passage of time: "It still stings. I still feel

my honor has been questioned, that's not something you shrug

off easily."

Cntinexite, damage awards fixed by a jury follow-

ing a properly conducted trial and approved by the trial judge

are "held to be inviolate against disturbance by the courts.”

Smithey v. Refining Company, 203 Va. 142, 145, 122 S.E.zd

872, 875 (1961). But, "[a] healthy administration of justice

G-38

requires that, in @ proper case, the courts must take action

to correct what plainly appears to be an unfair verdict. This

authority is an ancient and accepted part of the common

law." Id. at 146, 122 S.E.2d at 875. When there is a claim

that the verdict is excessive and it appears that the award is

so out of proportion to the damages sustained to suggest that

it is not the product of a fair and impartial decision, it be-

comes the duty of the court to correct the injustice. Id.,

122 S.E.2d at 875-76. This is such a case.

We agree with the defendant that the amount of

the award bears no relationship to the loss actually sustained

by the plaintiff. Clearly, Moore suffered damage to his repu-

tation, embarrassment, humiliation, and mental suffering from

this defamatory publication made negligently. Nevertheless,

the verdict of $100,000 is so out of proportion to the damage

sustained as to be excessive as a matter of law. As the de-

fendant points out, Moore experienced no physical manifesta-

tion of any emotional distress. Moreoever, he sought no med-

ical attention for any condition resulting from the publication.

In addition, there was no evidence that Moore's standing with

his peers was diminished as the result of the libel. Indeed,

G-39

the evidence shows that Moore's acquaintances supported him;

one indicated that: "As far as I personally am con-

cerned, .. . he lost nothing." Actually, the evidence showed

that Moore continues to be held in high esteem among his

community of friends and colleagues. Thus, we find that the

amount of the verdict bears no reasonable relation to the

damages sustained and, therefore, is not supported by the evi-

dence. Hence, the trial court erred in refusing the post-trial

motion to set aside the compensatory award as excessive.

The court should have granted the motion and then considered

requiring the plaintiff to remit a portion of the award or sub-

mit to a new trial under the provisions of Code § 8.01-383.1.

Section 6 of Article VI of the Virginia Constitu-

tion, dealing with the power of this Court upon reversal, mod-

ification, or affirmance of a judgment below, provides, in

part: "In any civil case, [the Supreme Court] may enter final

judgment, except that the award in a suit or action for unlig-

uidated damages shall not be increased or diminished." We

have interpreted this section: "The plain purpose of the pro-

vision is to leave to the factfinding tribunal--the jury or the

trial court sitting as a jury—the function of fixing the amount

G-40

of unliquidated damages. It does not deprive this court of

the authority to remand the case to the lower court with di-

rection that the plaintiff be put upon terms to remit a por-

tion of an award for unliquidated damages or else submit to a

new trial." United Construction Workers v. Laburnum, 194 Va.

872, 900, 75 S.E.2d 694, 712 (1953), aff'd, 347 U.S. 656

(1954). Upon rehearing of Bishop v. Webster, 154 Va. 771,

153 S.E. 832 (1930), the Court said that "the power long ex-

ercised by this and all other courts to put the plaintiff upon

terms, and to allow him the option of waiving a portion of

his damages or have a new trial," is not affected or dimin-

ished "in the slightest degree" by the foregoing constitutional

section. 154 Va. at 787, 155 S.E. at 828. For a case in

which this Court diminshed a damage award, see Lorillard v.

Clay, 127 Va. 734, 760, 104 S.E. 384, 392-93 (1920), decided

before the 1928 enactment of the forerunner to the present

constitutional provision. Acts 1928, ch. 205, p. 660.

Accordingly, we will reverse the compensatory

award and remand the case with direction to the trial court

to require the plaintiff to remit a substantial part of his re-

covery or else submit to a new trial upon the issue of

damages only.

G-41

Te

Next, the defendant contends there was insuffi-

cient evidence of actual malice to support the punitive award.

We do not agree.

We have made an independent examination of the

record on this issue to be certain that the judgment for puni-

tive damages does not constitute a forbidden intrusion on the

field of free expression. The trial court properly instructed

the jury that the plaintiff was required to establish New York

Times malice, that is, that Moore, by clear and convincing

evidence, had to prove that Fleming knew the statements

were false or that he made them, according to the instruc-

tion, "so recklessly as to amount to a willful disregard for

the truth... ."

We will assume without deciding that Fleming is

correct in his position that Moore failed to prove that

Fleming knew the defamatory statements were false.

Nonetheless, there was substantial, credible evidence to support

the jury's finding that Fleming acted with recklessness that

was tantamount to a willful disregard for the truth.

On this point, Fleming argues that looking through

his eyes "at his world as it existed in January 1976... the

G-42

only possible conclusion is that [he] was not motivated by ac-

tual malice but by genuine frustration." But evaluation of

this element of proof must be from an objective standpoint,

not merely from a subjective perspective.

Fleming abandoned all judgment and reason in

composing and publishing the advertisement. For example, he

accused Moore of racial prejudice without possessing any ob-

jective basis for the charge. Naming Moore in the publica-

tion, Fleming demeaned him as br ig a tenured position-holder

living off the "public dole" at the expense of working people.

There was no evidence that Moore, or any other person in a

similar occupation, was being supported to the prejudice of

other groups of citizens. There was no proof that Fleming

had any legitimate reason to believe Moore wished to deprive

"working people" of any opportunity. Fleming had no proper

grounds to suppose that Moore, as one of the so-called

"no-growth people" was oppressing other individuals. Fleming. .-

recklessly stated that Moore's opposition to the development

on pollution ground was a "sham" to conceal his supposed real

purpose, i.e., oppression of black citizens and others who

would live in the planned community. Finally, Fleming's act

G-43

of publishing the advertisement in the student newspaper on

the campus where Moore taught supports the conclusion that

defendant's motive was to intimidate Moore in order to elimi-

nate the voice of a leading opponent to Fleming's develop-

ment.

Next, defendant contends the amount of the puni-

tive award shocks the conscience in that it bears no relation-

ship to the intended purpose of punitive damages, which is to

punish the defendant for his conduct and to serve as a warn-

ing to others not to engage in similar activity. Defendant

says the award of $250,000, plus interest on that amount from

January 16, 1976, is unjust and establishes that the jury

misconceived the law or the facts or was actuated by passion

and prejudice.

The independent examination we make on the

punitive-damage issue is not limited to proof of punitive lia-

bility. The First Amendment implications flowing from the

amount of such an award require the reviewing court to con-

sider the effect of approval of such an award on

self-censorship in derogation of the right of free speech.

Moreover, a jury verdict for punitive damages cannot be

G-44

i rr nines

allowed to work an injustice and result in oppression. Stubbs

v. Cowden, 179 Va. 190, 199, 18 S.E.2d 275, 280. (1942).

Where a punitive award is substantially in excess of what or-

dinarily might be expected as punishment for the particular

conduct, the reviewing court has a duty to annul the award

unless the circumstances are so egregious as to constitute a

sufficient punishment for the wrongful activity. See id. at

200, 18 S.E.2d at 280. We hold that the amount of this

award, including the interest factor, constitutes a forbidden in-

trusion on the exercise of free expression and that it is sub- i

stantially in excess of adequate punishment for defendant's

conduct.

Without question, as we have said, Fleming acted

with actual malice. Nevertheless, the punishment for this ex-

cessive harangue is not merely punitive, it is destructive, even

though Fleming estimated his assets at close to one million

dollars. While the elements of compensatory damages differ

from the requirements to establish punitive damages, many

factors apply to both on appeal. For example, the absence of

physical manifestation of Moore's emotional distress must be

considered. The fact of no substantial reduction in Moore's

G-45

NE

standing with his associates must not be overlooked. Indeed,

Moore was not charged with commission of a crime. The

amount of punitive damages awarded should bear some reason-

able relationship to the actual damages sustained and to the

measure of punishment required; otherwise, the award on its

face indicates prejudice or partiality. Id. at 201, 18 S.E.2d

at 280. This is such an award and it cannot stand.

Consistent with our disposition of the compensato-

ry award, and on the same authority, we will reverse the pu-

nitive award, with direction to the trial court to require the

plaintiff to remit a substantial part of his punitive recovery

or else submit to a new trial upon the issue of damages only.

Because the main question regarding interest was

not preserved properly in the trial court and because the in-

terest issue may not arise upon remand, we do not address

that question. In addition, we deny the plaintiff's motion to

dismiss.

For these reasons, the judgment below will be af-

firmed, in part, reversed, and remanded for further proceed-

ings consistent with this opinion.

G-46

Record No.

Record No.

Record No.

Record No.

830758

830526

830651

831446

Affirmed.

Affirmed.

Affirmed, in part,

reversed, in part.

and final judgment.

Affirmed, in part,

reversed, in part,

and remanded.

Poff, J., concurring in part and dissenting in part. Harrison,

Retired Justice, concurring in part and dissenting in part.

G-47

= GAZETTE, INC.

Record No. 830758

JAMES WILLIAM HARRIS, et al

CHARLOTTESVILLE NEWSPAPERS, INC.

v. Record No. 830526

DEBRA C. MATTHEWS

— PACKET CORPORATION

Record No. 830651

E GREY LEWIS, et aL

JAMES N. FLEMING

v. Record No. 831446

W. BEFORD MOORE, I

Poff, J., concurring in part and dissenting in part

I do not approve the compensatory-damage stan-

dard of liability the majority imposes upon the media defen-

dants.

The free press clause of the First Amendment

was designed, not so much as a license for publishers, but as

an engine of the people's right to know what the press is

uniquely equipped to discover and report. The goal of the

majority, which I applaud, is to strike a public-policy balance

between the interest a private person has in his good name

and the interest the public has in the media's freedom to

publish. When a defamatory publication causes these

G-48

Sse teenieaniieneaneiiil

competing interests to collide, courts must weigh constitutional

values and resolve the conflict by defining the standard of li-

ability. Except for cases involving qualified privilege (a con-

cept left undefined), the majority has adopted a

simple-negligence standard. I fear that standard creates an

impolitic imbalance between the competing interests.

The actual-malice standard weighs heavily in favor

of the media defendant at the expense of the injured private

plaintiff; on the other hand, the simple-negligence standard

tends to chill both reportorial free press and editorial free

speech, and self-censorship by a timorous media disserves the

people's right to know. I would reject both standards and

strike a balance midway between the two extremes.

For compensatory-damage claims, I favor a

gross-negligence standard. Specifically, I would hold that,

when the content of a false publication makes substantial dan-

ger to the reputation of a private person apparent, that per-

son may recover compensatory damages against a media defen-

dant if he proves by a preponderance of the evidence that

the defendant's negligence in the investigation and verification

of the content of the publication was so gross as to shock

G-49

the conscience of fair-minded men and so heedless of the

truth as to evince a flagrant indifference to his rights. See

Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196,

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

I recognize that the courts of most states, exer-

cising the discretion granted in Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974), have adopted the simple-negligence stan-

dard. We ought not fear to join the minority. This Com-

monwealth first proclaimed the free-press principle in 1776 in

Article XII of the Virginia Declaration of Rights, and James

Madison was largely responsible for inclusion of the first

Amendment in the Constitution of the United States. In my

view, a rule which makes publishers and broadcasters liable

for simple negligence weakens Virginia's historical commitment

to freedom of the press and encumbers the right of the peo-

ple to learn what they need to know to govern themselves

wisely.

In keeping with the standard I have defined, I

will concur in part and dissent in part. In the Gazette case

and in the Charlottesville Newspapers case, I must dissent

from the decision to affirm the several verdicts because each

G-50

was based upon an instruction defining the simple-negligence

standard. For the same reasu:. I dissent from the decision to

affirm the compensatory-damage award in the Port Packet

case; however, I concur in the decision to reverse the

punitive-damage award in that case because I agree that the

evidence fails to show actual malice. In the Fleming case, I

concur in full.

G-51

THE GAZETTE, INC.

Vv. Record No. 830758

JAMES WILLIAM HARRIS, et al.

CHARLOTTESVILLE NEWSPAPERS, INC.

Vv. Record No. 830526

DEBRA C. MATTHEWS

PORT PACKET CORPORATION

V. Record No. 830651

E. GREY LEWIS, et al

Harrison, Retired Justice, concurring in part and

dissenting in part.

The opinion of the majority finds precedential

support in cases decided by this and several other state

courts. I agree that in each of the cases under review the

defendant failed to exercise ordinary care and therefore acted

AS key ig te ct Doe Ot aN Ae PK

negligently. This dissent stems from my disagreement with

the Court's refusal to adopt in defamation cases as a matter

of state law a stricter standard than that of ordinary negli-

‘gence. Ordinary care is that care which is commensurate

with the oeceasion. It is not absolute or intrinsic. It is al-

ways relative to some circumstances of time, place, manner,

or person and becomes a question of fact to be decided by a

jury.

G-52

| a ee ee

Juries are randomly selected, and the principal

criteria for service thereon is not to be a felon, not under

age eighteen, and not unable to communicate in the English

language. Present-day juries often return verdicts that are

completely out of proportion to the harm done. The verdicts

under review are no exception. Trial judges are reluctant to

disturb the verdict of a jury. Appellate courts are equally as

reluctant to sustain a trial court when it does take such ac-

tion.

I do not concur in the suggestion that a gross

negligence standard be adopted. The distinction between gross

and ordinary negligence is too vague and shadowy to be of

any practical importance. The difficulty that courts and ju-

ries had in making this distinction in motor vehicle accident

eases caused the General Assembly to abolish the gross negli-

gence standard in guest cases. Virginia Code § 8.01-63. I

have no reason to believe that a jury or a court would find

it any easier to make the distinction in defamation cases.

I would adopt the New York Times standard

which permits the recovery of compensatory damages for a

defamatory statement only when such statement is made with

G-53

‘ ite

NIE PR icra ete — es

knowledge thet it is false or is made with reckless disregard

of whether it was false or not. And I would make the same

standard applicable to the media and non-media defendants.

Any lesser standard will inevitably have a chilling effect on

free speech and the free press and will erode the safeguards

protected by the Constitutions of the United States and Vir-

ginia.

The majority opinion does limit the application of

the negligent standard by requiring a trial judge to find as a

matter of law that the defamatory statement "makes substan-

tial danger to reputation apparent." Although I approve the

limitation, I fear that it will prove in practice to be one of

form rather than substance. What is defamatory and when it

is harmful are questions of fact. Judges will be just as hesi-

tant to "take a case away" from the trier of the facts as

they now are to set aside the verdict of a jury once it has

been rendered.

Because I am of opinion that the defendants in

The Gazette, Inc., Charlottesville Newspapers, Inc., and Port

Packet Corporation were guilty of simple negligence only, a

standard which I would not adopt, I dissent from the decision

G-54

§

affirming the compensatory-damage awards in the cases. I

concur in the action of the majority in reversing the

punitive-damage award in the Port Packet case. I did not

participate in Fleming.

G-55

APPENDIX H

SUPREME COURT OF VIRGINIA

JAMES N. FLEMING,

Appellant,

-against-

W. BEDFORD MOORE, I,

Appellee.

Record No. 831446

February 1, 1985

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court

Building in the City of Richmond on Friday the ist day of

February, 1985.

James N. Fleming, Appellant,

against Record No. 831446

Circuit Court No. 976-L

W. Bedford Moore, II, Appellee.

Upon an appeal

from a judgment ren-

dered by the Circuit

Court of Albemarle

County on the 3rd day

of June, 1983.

For reasons stated in writing and filed with the

record, the Court is of opinion that there is error in part in

the judgment appealed from. Accordingly, the judgment is af-

firmed, in part, reversed, in part, and the case is remanded

to the said circuit court for further proceedings consistent

with the written opinion of this Court.

The Court has held that the compensatory award

of $100,000 is excessive and that the punitive award of

$250,000 is excessive. It follows that the award of any

Prejudgment interest on either the compensatory or punitive

award, even if such interest on a punitive award is allowable

in a proper case, merely increases the excessiveness of the

awards by the amount of the interest.

Accordingly, without passing on the legality of an

award of prejudgment interest on punitive damages, the Court

has determined that the whole interest factor is grossly exces-

sive and shall not be used by the trial court in computing the

amount of the remittitur.

Thus the plaintiff shall remit the entire amount

of the prejudgment interest, a substantial portion of the puni-

tive award of $250,000, and a substantial portion of the com-

pensatory award of $100,000, or else submit to a new trial

upon the issue of damages only.

The appellant shall pay to the appellee the costs

expended herein.

This order shall be certified to the said circuit

eourt.

A Copy,

Teste: /s/David B. Beacl

Clerk

H-3

Apellee's costs:

Attorney's fee $50.00

Cost of printing brief

| not to exceed $200 -

Code § 14.1-182

Teste: /s/David B. Beach

Clerk

SER sie enor

APPENDIX I

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Ill,

Plaintiff,

Vv.

JAMES N. FLEMING

Defendant.

Law No. 976-L

October 7, 1982

Transcript pages 28-38

that, Mr. Poindexter? Until we hear the evidence, or is

there something in the interrogatories or the pleadings that

would indicate it? {

MR. POINDEXTER: Yes, sir, we believe there's

ample record for the Court not to conclude that a prayer for

punitive damages is not permitted in this case, given the

record backdropped against the opinion of the Supreme Court.

There is no way, if Mr. Moore does not intend to radically

depart from the evidence that was given, that the trier of

fact could find a deliberate misconstruction of the truth or an

utter wanton disregard for the truth of anything that Mr.

Fleming said and that throws aside all the questions of privi-

lege and everything else. And at some point such an absurd —

claim should be disposed of so that it does not clutter up

whatever remains in this case. But punitive damages - puni-

tive damages are simply not in this case.

THE COURT: Did the Supreme Court address

that in anyway in its opinion?

I-2

MR. PHEMISTER: Yes, they did, Your Honor.

On page ten of the opinion they talked about the punitive

damege claim. I hope I'm referring you to the right page.

Yes. The court said, on the basis of Gertz, we vacated an

award of punitive damages entered against a publisher where

the award was based upon ‘a finding of common law malice

and held that it was necessary to show knowledge of falsity

or reckless disregard for the truth by clear and convincing ev-

idence before punitive damages could be awarded. Newspaper

Publishing Corp. against Burke.

THE COURT: Then it goes on to deal nonmedia

defendants, which is what we have here. Since Fleming is

not a media defendant and Moore is not a public figure,

Gertz does not control the present case, nevertheless we share

the concern expressed in Gertz at the assessment by juries of

punitive damages, in holding unpredictable amounts bearing no

necessary relation to the actual harm caused. Therefore, we

hold that any instruction on punitive damages must be struc-

tured upon the same standard of proof of "actual malice" as

defined in New York Times, applied in Gertz and followed in

Burke that is required in defamation actions against media

defendants. That is they're saying now ‘hat they have not

previously applied it to nonmedia defendants but they're now

extending the rule to nonmedia defendants so they're saying.

MR. PHEMISTER: I think in anticipation of the —

Supreme Court ruling, the United States Supreme Court's

ruling, but they have said that the same standard applies with

nonmedia defendants as media defendants, and therefore Gertz

in fact does control the case. And the other part of the

motion on the punitive damage claim really ties into the mo-

tion to dismiss. You'll notice in the reference back on page

ten, up at the top right before the portion of the paragraph

that I was reading the Virginia Supreme Court is discussing

the Gertz Case and the Virginia Supreme Court notes that the

award of damages without the proof of actual injury was con-

demned, when they say was condemned they mean by Gertz

and here they are quoting the Gertz Opinion, inviting juries to

punish unpopular opinion rather than to compensate individuals

for injuries sustained by the publication of a false fact.

Now, if you had to crystalize the libel in this case, the con-

tended libel on the part of the Plaintiff you would have to

say that it's a claim on the part of the Plaintiff that he has

4

been called a racist and if we take that for the purposes of

our argument as the libel and boil it all down and say this is

what it really means, this is what we argue to the jury that

the libel was, that Mr. Fleming called Mr. Moore a racist.

We submit to the court that not only is this case subject to

a Motion to Dismiss it also is not a case for punitive damag-

es because there is no false fact. If I call you a racist it's

a statement of opinion, with Your Honor's permission, and

what I think is a racist may differ from what Mr. Moore

thinks is a racist. He may take deep umbrage at a comment

that I consider not demeaning in any shape or form and be-

cause it is an unquantifiable subjective consideration it is not

a fact, it cannot be false and we contend cannot be the sub-

ject for punitive damages or for that matter libel.

THE COURT: Why wouldn't the Supreme Court

then have reversed the case and entered final judgment?

MR. PHEMISTER: The minds of the Supreme

Court Your Honor is something that we can only hope to...

THE COURT: Why should I do the job for them

at this stage? I think I have already made that comment.

They had the opportunity to reverse and enter final judgment

I-5

and didn't and you are now saying this court should do it be-

hind the Supreme Court without trying the case aren't you?

MR. PHEMISTER: No Your Honor, I wouldn't

characterize my remarks that way. I think in fact the Su-

preme Court shows an error or ground on which to reverse it,

perhaps looking for some clarification but I don't see what

that clarification could be. I think the case is right at this

point.

THE COURT: I am not going to require any

further argument on that point. I took it up with Mr.

Poindexter when this case first arrived back at - in this court

and we spent a considerable amount of time and I made a

ruling on that and indicated that the Supreme Court if it had

chosen to could have, for whatever reasons it might have

found appropriate, dismissed and entered final judgment. In

fact, the dissenting opinion indicated it should have been; but

it is not up to this court to do having tried it once and the

Supreme Court having reversed it and sent it back for retrial.

The only thing I can do is rule that it's available for retrial

unless the plaintiff has in some way gotten himself in a dif-

ferent position since the case was sent back for retrial and

I-6

not having such information I therefore overrule the motion

for dismissal and also with respect the issue of punitive dam-

ages. I don't see how the case can suddenly take a turn dif-

ferent from what it was when it was sent back here from

the Supreme Court. I do have grave misgivings about the

posture of the case when you get to that stage. I think it

would have to be vased on the evidence and until the evi-

dence is actually presented to me and the court evaluates the

evidence it would be inappropriate to rule on this question of

punitive damages. I think a Motion to Strike would be the

appropriate place for that to again be considered.

MR. POINDEXTER: Your Honor, may I just ask

a question for clarification?

THE COURT: Yes sir.

MR. POINDEXTER: That is the value of Mr.

Phemister's thought in this because it had kind of escaped us

to the point that he introduced it. If you call somebody a

thief you can prove it, you can go out possibly and get a

record and show that what you said is the truth. If you say

somebody has a veneral disease it's possible that you could go

back and get records and prove that; but if Mr. Fleming or I

cvipiatl op. ieee aaa ee

INF A TEAC IBD EOIN wet are»

should call someone a racist there is no way that what I said

could be disproved and there is no factual way that I could

really prove that to the satisfaction of everybody so it be-

comes not a fact but a highly subjective value judgment. For

example, there was an article, an editorial, in the Progress

Index under the broad heading Racism in the Reservoir and it

took to task Mr. Fleming and Saad El] Amin who was known

at that time as JeRoyd Greene for introducing, even daring to

introduce the thought that someone in this area was

discriminating against Mr. Fleming because he was black and

it concluded by saying that perhaps the persons who make this

accusation are guilty of racism or whatever. Now, I can't

imagine that that kind of editorial would give, rise, or would

have given rise to a cause of action. Just like I could not

imagine that that article that Mr. Fleming had put in the

newspaper would have caused us the consternation that it has;

but whether Mr. Fleming and Mr. Saad El Amin were indeed

were racists was simply a perception of that editorial writer

down here at the newspaper and whether Mr. Moore is a

racist, we say we never called him that, but if he insists

that we have called him that so what, it is at Mr. Fleming's

I-8

perception and Mr. Fleming could probably see all the evi-

dence in the world and not be detered by it; but it cannot

be proven or disproven in any objective quantification that 4

jury or tryor of fact can say this is it, he is not a racist,

he is a racist, give him some money, don't give him some

money and that is the reason that we believe that this law-

suit has simply run out of steam and it should not be allowed

to linger - it has been around now for seven - six years and

we are no closer to a resolution of this thing than we were

six years ago and there has been the intervention of a case

recently coming out of the boycotts of Mississippi, NAACP

versus Claiborne which adds greater value to the value coming

to our right of free speech and exchange of ideas and we

just believe firmly that Mr. Fleming had a First Amendment

Right to say what was said and that a court, without putting

us to a jury, should put an end to this lawsuit. If Claiborne

is the case that does it then Claiborne is indeed the case and

we believe that Your Honor should, despite what the Supreme

Court may have said, take up the implications of the most

recent decision in this area by the United States Supreme

Court and rid us of the uncertainties of this lawsuit.

THE COURT: Well, are you saying that that was

not presented to the Supreme Court, was not taken as an ex-

ception or one of the basis of the appeal? The term itself

was one that could not lend itself to an action. What does

the dissent say?

MR. POINDEXTER: Dissent is what we say.

THE COURT: Yes. Why should this court follow

dissent? You are asking this court to reverse the Supreme

Court and file a dissent. Sometimes we are often tempted

but it's not done. It's not the law. Now, I had this question

addressed in the Palumbo Case and I did considerable re-

search, I might not have written a very long opinion but I re-

call the great deal of attention that was given to this ques-

tion of opinion as opposed to fect. Mr. Albro, was there a

written opinion from this court in that case? On the prelimi-

nary motion?

MR. ALBRO: Yes sir.

THE COURT: I may have to retreive it and

look at it again but a lot of attention was given this very

point that Mr. Phemister and Mr. Poindexter now raise and

that is it was not a false allegation of fact but rather one

I-10

of opinion, a question of mixed fact of opinion and I com-

mented in my ruling on that very aspect of that Palumbo

case, it didn't get to trial, it was settled wasn't it?

MR. ALBRO: Yes, it was settled.

THE COURT: That was a very strong point

made by the attorneys for the, what was it, television sta-

tion?

MR. ALBRO: Channel Six.

THE COURT: I may want to look at that but I

have made my ruling and I certainly am always open to tak-

ing the second look which ! will do and I note your position

as to the difference between fact and opiriion; but the prob-

lem that I have with it is that again we come back to this

question of characterization of the terms that the Supreme

Court had an ample opportunity to deal with. Let's look at

Justice Harrison's Dissent. I think we dealt with a number of

cases that were not in this Commonwealth when we dealt

with this question of fact and opinion; and cases from all

over the country were analyzed in that context and [ll review

that further and let the judge who may try the case have the

benefit of that research and the memoranda on each side. It

I-11

is never put to rest but I think anytime a judge enters final

judgment, or what amounts to a determination of the merits

of the case until the evidence is before the court, has to, be

based entirely on the pleadings and the answers and responses

to interrogatories and I can't see how again that would be a

new ingredient that would allow this court to dismiss a case

at this stage which has been sent back for retrial.

MR. POINDEXTER: Your Honor, I asked Mr.

Moore this morning to name some racists and he earlier

named Andrew Young and he said Senator Bilbo and the late

George Lincoln Rockwell. But I would think that those per-

sons were not necessarily racists in the eyes of all persons

who preceded them and that just shows some of the difficulty

that is associated with trying to quantify and talk in objective

terms about a racist. Mr. Albro could be a racist to me but

he may not be to Mr. Pinemister and we would have our dif-

ferent points as to why Mr. Albro is a racist but we would

never resolve that and it's unfair to try to put such a vague

question to a tryor of fact and that of course gives us a

problem in damages, even if we agree that this is an article

which has harmed this gentleman. Another one was published

I-12

in the Tribune a week before that and he was harmed by

that, he said about equally; and he has filed a million dollar

lawsuit based upon that. He filed a million dollar lawsuit

over here, they are right across the street. Now, how does

he distinguish between what harm he felt, what injury, what

emotional stress, what suffering he has experienced from the

Cavalier Daily article which was published twice as opposed to

the Tribune article? He told us this morning that the

Tribune article had an impact, probably a greater impact in

the black community, among his black friends; but you can't

distinguish for the jury in a certain sense what harm the

Cavalier Daily article did as opposed to the Tribune article

and it has been an old teaching that when damages and injur-

ies are so vague they cannot be ascertained you have no

case.

THE COURT: Mr. Poindexter, I have made my

ruling and I'll merely note this for the benefit of your objec-

tion and the record which will have to be preserved, if it's

appropriate, and that is, the evidence presented had it not

been for objective testimony may well have caused the court

to sustain a motion to strike, had it been entirely subjective

[-13

by the plaintiff your point would be well made but as I recall

the evidence and certainly the plaintiff has a right to bolster

his case with evidence there was objective testimony to the

effect that this term used in the context of the University of

Virginia Campus at the time when used was more than subjec-

tive damage. People who were in positions to testify I sup-

pose almost as an expert and I recall specifically the former

President of the University of Virginia in dealing with the po-

sition of a faculty member being termed a racist on his cam-

pus. Now, that was the evidence. I would certainly agree

with you that in the vague sense and out of the context of

the surroundings that these words were uttered in you may

have an entirely different result just as the old classic case,

you can yell fire on the street, that's one thing; if you yell

fire in a crowded theater it's another and that's exactly what

this case according to the evidence went to the jury on and lI

have no qualms about your position that subjective reaction is

not necessarily compensible. It has to be based in objective

criteria and in this case if the plaintiff doesn't provide it

then he is always subject to a motion ‘to strike, as was the

other case and I think I refused to sustain a Motion to Strike

I-14

based upon the fact that it was not his own reaction to it, it

was the objective evaluation of his position as a faculty mem-

ber at the time the utterance was made in the context of

the student body and this being a student newspaper. I think

I made the comment had it been published in some other pub-

lication which was not normally circulated on the campus, not

primarily designed to be circulated on the campus, you cer-

tainly would have had a different situation. I certainly made

a distinction between a normal publication and that which in

effect searched out the plaintiff within his own area of work.

That was the basis upon which the evidence came in. I don't

I-15

APPENDIX J

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, I,

Plaintiff,

Vv.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

October 21-22, 1982

Transcript pages 539-40

the court?

MR. ALBRO: The, the law in every jurisdiction

that I'm aware of is that the determination of public figure

status is made by the court and it was made by the court in

this case in the first trial and I don't know of a single case

anywhere that says public figure-private person status is a de-

termination made by the jury.

THE COURT: Do you have any contrary authori-

ty, Mr. Poindexter?

MR. POINDEXTER: No, sir.

THE COURT: All right, the court concludes that

it is a matter to be determined by the court. In viewing the

evidence relating to Mr. Moore's conduct and his position rela-

tive to the public, we can find no evidence that establishes

him to be other than a private person. The court is also

persuaded that based on the language contained in the last

sentence of the first full paragraph at page 892, 221 Virginia,

case of Fleming versus Moore, that the only proper inference

to be drawn from that sentence is that Virginia is on the

negligent standard in regard to this determination.

Consequently, both instructions we feel would be proper for

the jury, both as to preponderance of the evidence and the

burden of proof where there is a requirement of clear and

convincing evidence. It will be granted as 9 and 10 respec-

tively.

MR. CARTER: If the court please, we want to

add our exceptions to that ruling.

THE COURT: Exception noted.

MR. CARTER: To both those issues.

THE COURT: Exception noted as to each issue.

All right, the next instruction, the verdict must be based on

the facts as you find them and on the law contained in all

these instructions. The issues on this case are: (1) Did the

defendant make the statements contained in the advertisement

headed "Racism" appearing in the January 15 and 16, 1976

editions of The Cavalier Daily newspaper? If he did, were

they seen by someone other than the plaintiff? (3) Are the

statements about the plaintiff? (4) Are the statements

false? (5) Are the statements defamatory? (6) Did the

plaintiff sustain an actual injury as a resuit of the state-

ments? On these issues the plaintiff has the burden of proof.

(7) Are the statements substantially true? On these issues

the defendant has the burden of proof. (8) If the plaintiff

is entitled to recover, what is the amount of his damages?

On this issue the plaintiff has the burden of proof. Your de-

cisions on these issues must be governed by the instructions

that follow. Maybe we'd better consider those instructions be-

fore we....well, do you find anything objectionable about the

first part?

MR. POINDEXTER: Yes, sir.

THE COURT: All right, which number do you

find objectionable?

MR. POINDEXTER: There is an omission. The

omission is

J-4

APPENDIX K

: CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, IIL,

Plaintiff,

v.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

October 21-22, 1982

) Transcript page 22

THE COURT: All right, I will ask the jury to

step into the jury room please.

(Jury retired to the jury room at this time)

THE COURT: I will ask the members of the

jury who have been excluded from the panel to step into the

hall please. Do not leave, just step into the hall briefly,

those of you who have been excluded from the panel.

(Rest of the jurors retired from the courtroom)

MR. CARTER: If the court, please, I want the

record of this trial to show that the three blacks that were

on this jury, one of them disqualified himself and the other

two were put off by the defendant and I want the record to

show that and I want it to be very clear that the race issue

in this case...he is entitled to have black people on that jury

just like everybody else has and I resent the fact that they

made a point, the first two were blacks, to put them off the

jury and I want the record to show that's what happened and

we except to it.

THE COURT: The record will so reflect. All

right, you may bring in the jury.

MR. CARTER: I would move to quash the panel.

K-3

APPENDIX L

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. SEDFORD MOORE, Ii,

Plaintiff, |

Vv.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

October 21-22, 1962

Transcript pages 373-87,

514-23

Fest gh Pe

ae

matter up now then.

MR. ALBRO: All right, sir, I think that is actu-

ally something that was going to be reserved for a motion to

strike if that's what you want to take up at this time.

THE COURT: All right, if there's nothing else

then other than the motion to strike and with the reservation

of putting on evidence as to the wealth of the defendant in

the event the plaintiff prevails in his contention the Court is

pray Fe to release the jury and hear the motion to strike if

there is one.

MR. POINDEXTER: Yes sir.

THE COURT: All right, bring the jury back in.

Ali right, ladies and gentlemen of the jury, you need not get

settled back down into your seats, we're going to release you

now with the request that you be back in the morning at

10:00 to resume this case. The attorneys and the court will

proceed to take care of some matters which you are not

needed for. So you are now excused until tomorrow morning

at 10:00. Let me remind you, however, not to discuss this

ease or allow anyone to discuss the case with you during the

L-2

time that you are recessed. You may withdraw. All right,

the jury has withdrawn.

MR. POINDEXTER: May it please the court,

Your Honor, first we would respectfully submit that given all

the ... all the evidence heard in this case today, no case

framed against the context of, framed against the decision of

the court in this case previously. No case has been made

out to go to the jury, because the case includes Mr. Fleming's

own recital which would rebut any suggestion of wrongdoing

on his part which would give rise to the cause of action. It

would seem that the plaintiff has had to show to this point

at least by a preponderance of the evidence of defamation, a

libel. Other than conclusionary allegations on the part of the

plaintiff, first of all missing from that is the component of

damages. Now, Mr. Moore has testified as have his witnesses

that there was no damage. That would have to be a neces-

sary component of his case. There is not enough in simply

saying that I was distressed, simply saying that I was greatly

embarrassed, that is not enough under the measure or the test

provided in Fleming v. Moore to allow a jury at this point, if

we did nothing else to speculate on the worth of his case.

The other part of it is that we would have to insert again

our right to say things, though they might have fallen un-

pleasant, though they might have given rise to anger on the

part of Mr. Moore. Mr. Fleming has a constitutionally pro-

tected right given all those circumstances that we now know

comprised the conflict between these two men to say what he

believed to be true as it concerned him at that time. If

Your Honor would have had an opportunity to research some

authority, I doubt whether you would have found any case

with an unsettled judgment wherein the allegation was that

someone was called a racist or someone suggested that that

person was inflicted with race as a standard for libel. We

have found no such authority. Perhaps Mr. Albro can suggest

something to the court but you have to view the assertion by

Mr. Fleming that the claim of race is within the context of

what happened to him and how Mr. Moore was involved di-

rectly or indirectly in that occurrence. And the case has to

be weighed in that light and then insert in that measurement

this first amendment protection. The first amendment pro-

tection runs whether or not he is a public figure, but if he is

a public figure as we submit that he must be found to be at

L-4

this point, the burden becomes one of showing by clear and

convincing evidence that Mr. Fleming purposely lied or was so

reckless in what he said about the man until it was tanta-

mount to a lie. And if you measure, if you take that test

and measure it against what is the evidence in this case you

cannot, you cannot come to such a conclusion given the, cer-

tainly given the higher test, not even given the minimal pre-

ponderance test because what he said must be measured in a

subjective rather than objective sense. If he believed what he

said was true that's sufficient. Whether it was true or not,

he made a mistake, he's not responsible for it. There must

be some culpability. He's not punished in a libel case for

negligence, he is punished for a malicious state of mind. And

there's simply nothing in here to that effect. Here's a man

who saw his dreams for his subdivision out there abolished in

effect by what he perceived as the racist conduct of

Albemarle County officials who were encouraged and abetted

by citizenry all of whom suddenly rose up when he as a Dlack

person tried to initiate a development in an area where he

had seen white developers develop their property, sell their

property, encroach upon the reservoir and all at once he is

ia ba ie a had

swamped by these claims of pollution, he is swamped by a

house suddenly being designated a historic landmark that's only

forty some years old despite the fact that I'm sure it is a

significant piece of architecture. He is swamped by all sorts

of concerns that have never before been expressed in this

community. It was not unreasonable under those circumstanc-

es for him to have lashed out in the fashion that he did in

the ad which was published in The Cavalier Daily on January

15th and 16th, 1976 and in order to go forward at this junc-

ture, Your Honor, it would seem that you would have to find

that there is some room for him to have told, intentionally

told a falsity and that simply is not evidence in this case.

Given the fact that he's testified that, believed it then, be-

lieves it today. And we submit that at this point the case

should not be submitted to a jury on any grounds and, of

course, that would mean that we would have to have not to

respond to it beyond the response that has been elicited

through the examination of these witnesses. There is no bur-

den upon us.

L-6

THE COURT: All right, Mr. Albro.

MR. ALBRO: Thank you, Your Honor. Your

Honor, I think perhaps the way to approach this issue is to

consider the law and what we're going to have to ultimately

instruct the jury. I state for the record only because I think

it should be stated not because Your Honor doesn't know, ob-

viously at this state all of the evidence that was admitted

must be viewed in the light most favorable to the plaintiff.

And all proper inferences that could be derived therefrom

must similarly be so viewed and having said that the issue

that confronts us now is have we made such claim as to cre-

ate the jury question. Have we put on such evidence that is

so as to have created a jury question on the key issues. The

first issue in the case is did the defendant make the state-

ments complained of in the advertisement. That, of course,

is not denied, that's a given. The second issue is if he did,

were they seen by someone other than the plaintiff. And we

have had such testimony. That is not an issue. The third

are the statements about the plaintiff. The plaintiff is the

only living human being referred to in that ad and as we

know from his testimony and that of others there are

L-7

numerous references in that ad that relate back logically and

directly to the plaintiff. That's not an issue. The fourth

issue, are the statements false? This is with particular refer-

ence to the charges of racist behavior and racism. Of course

there is a dispute between the parties as to that, but the

issue is at this juncture is the defendant entitled to strike

our evidence, have we not shown falsity. We have shown fal-

sity. We have shown falsity in two contexts. First we have

shown clearly and unequivocably Bedford Moore is not in gen-

eral a racist, and I'm not going to regale the court with the

specifics of the testimony. But suffice it to say those who

have known him intimately and well, socially and professionally

recoil the notion that this man harbored any ill will against

any person because of the color of his skin. It is false that

he is a racist. It is false that he is an adherent of racism,

both of which charges are leveled against him in the ad.

Are the charges leveled against him false specifically with

reference to this project. And again viewing our evidence in

the light most favorable to us, the answer is undeniably yes,

we have shown they are false. He was never at any time, in

any context motivated by the race of the applicant, nor was

L-8

he motivated at any time in any context by the race of

those persons who might possibly live in Evergreen were it

ever developed. I think particularly on this issue is the testi-

mony of Mr. Murray. Because apart from anybody else in

this case Mr. Murray occupied a confidential relationship with

Mr. Moore, and he was bound by a professional privilege.

And at that time Mr. Moore could have said anything of any

kind and expressed his true feelings about Mr. Fleming and his

development, and Mr. Murray didn't even know the man was a

black man until he went to the Planning Commission and

found out quite by surprise that he was a black man. Al-

though he had met with Mr. Moore once alone and once with

Henderson Heyward, it never came up. The simple fact of

the matter is that he has never at any time done anything

with respect to this defendant or his planned development that

was in any way shape or form racist or based upon an adher-

ence to some form of racism as that has been defined or de-

famatory. I think first, in the first instance that's really

been taken away from us by the Supreme Court of Virginia.

If they weren't defamatory they would have reversed it in

their final judgment because the self same ad in every

L-9

particular was a front argument when we took this case down

to Richmond on appeal from the first trial. Albertus Harrison

dissented, he was out voted I think five to one, and the

grounds of his dissent was that it was not actual, it was not

defamatory and he prevented final judgment. He stood alone.

I think the Supreme Court of Virginia has ruled that it's de-

famatory, because if it weren't we wouldn't be here. But

suffice to say we're going to have to instruct the jury on the

issue nevertheless. I don't suggest we take that away from

them. But that is peculiarly a jury issue. The definition of

defamation is does it hold the man up to public contempt,

scorn and ridicule. That is a decision that is made by the

jury in the context of this community bringing to bear their

common experiences and understandings of terminology as

members of the community. It is simply no way that issue

could be taken away at this juncture. Did the plaintiff sus-

tain actual injury as a result of the statements, yes, clearly

he did, undeniably he did and that hasn't been controverted.

Now, I must frankly confess I don't know what Mr. Poindexter

is talking about when he says that the testimony is that

there's no injury here. The Supreme Court of Virginia in the

L-10

majority opinion in Fleming v. Moore concluded we hold, this

is at 894 of the 221 Virginia opinion, we hold that Moore is

entitled to recover compensatory damages upon proof of actual

injury including such elements as damage to his reputation and

standing in the community, embarrassment, humiliation and

mental suffering. Special damages which under the common

law rule must be shown as a prerequisite to recovery where

the defamatory rewards are not actionable per se are not to

be limited to pecuniary loss. He's testified to humilitation,

embarrassment, a stain on his reputation and various other

forms of mental anguish. Furthermore, we have, also had

testimony that serious questions were raised about this man

among people who did not know him intimately, particularly

that which was raised by Mr. Elwood. Black persons who

were at the University who didn't know him who were sud-

denly now concerned about who this, what this individual truly

thought as a member of this self same university community.

Now, insofar as the allegation by the defense that if the de-

fendant believes in what he says there is no case. That is

not the law any where in any jurisdiction. Because if it

were every person who was ever sued for defamation could

L-11

merely walk into court, file an affidavit stating I believe

what I said was true, and he'd be entitled to summary judg-

ment. That is not the way it works. We know that insofar

as compensatory damages are concerned, we have to prove

that he was in some way negligent in his conduct toward this

plaintiff. And I think we have shown it in the way he has

conducted himself and the way in which he recklessly leveled

charges of racism and racist behavior in spite of all the pub-

lic record and all the evidence that was available to him.

That is more than negligence, that is knowledge of falsity

and/or reckless disregard for the truth and that is peculiarly a

jury question and there's simply no way that we can say at

this juncture that a jury question has not been created on

that issue. Now, in the Virginia Model Jury Instructions the

clear and convincing evidence standard which must be shown

as to knowledge of falsity rnd reckless disregard for the truth

which is the standard for punitive damages is defined as pro-

duction of evidence that simply creates in your minds, refer-

ring to the jury, a firm belief or conviction that he has

proved the issue. All right, can we say on this evidence,

taking it in the light most favorable to the plaintiff that we

L-12

have given this jury evidence upon which it could properly

reach a firm belief or a conviction that the charges of rac-

ism or a racist behavior leveled against the plaintiff by the

defendant were made either with the knowledge that they

were false or with a reckless disregard for whether they were

true or not. And on that score there is more than ample

evidence to let this case go to the jury. We know for exam-

ple by his own testimony that this defendant attended every

Planning Commission and Board of Supervisors meeting that

occurred before January 15, 1976 on this first and second Ev-

ergreen plans. At that time and in those meetings

overwhelming evidence from a whole host of sources was in-

troduced to show that this proposed development posed a seri-

ous threat to the life of the reservoir. Persons who had no

particular interest in Mr. Fleming or race or anything else,

persons who lived in the area, persons who lived outside of

the area, private groups, citizen groups, individuals, the

League of Women Voters, the State Department of Health, the

State Bureau of Sanitary Engineering, it's all in those exhibits

and it just goes on and on and on. But what is absent from

all of them is evidence of racist behavior on anybody's part

but what is certainly clear from that evidence is that race

L-13

was used as a weapon and the jury may so conclude based on

that record, it was used as a weapon by this defendant when

he couldn't get what he wanted by legitimate means and the

race issue was injected first and through out by the defendant

and through the attorneys he employed to speak on his behalf.

He had said in his ad that pollution was a sham, that it was

an excuse, he said that all of these people were conspiring

against him based on race from the League of Women Voters

to Delegate Murray all the way down to Bedford Moore and

he has no proof of that. He is utterly without proof. Per-

haps he will put on some proof that will create a doubt in

the minds of the jury but it's not here now. It was not a

sham, and I asked Mr. Tucker, Mr. Tucker based on your ex-

perience what scores of development in the county, in and

about the reservoir and throughout the county, was this a

sham, were these people in there stopping Bedford, stopping

James Fleming from his race. It said it was most definitely

not a sham, it was anything but a sham. There is the sug-

gestion that because Mr. Hurt got the Ivy Farm project ap-

proved and because Mr. Wood though he never built it because

he wasn't allowed to build it, got the Panorama approved,

L-14

that this proved racism and somehow this relates to Bedford

Moore. But what is clear from the record is that first of all

both of those developments were quite distinct, they were

zoned for what was going to be built there. They didn't have

to go through the public hearing process that Evergreen went

through. They were a different density than the case of Ev-

ergreen. But they were certainly differently zoned. Further-

more, although the defendant takes the position that because

they were approved Mr. Moore is a racist, he freely admits

he never talked to Wendell Wood. He freely admits he didn't

go to all the meetings on Ivy Farm, nor did he go to all the

meetings on Panorama. We know that Mr. Moore when he

was challenged by Mr. Puryear before the ad was published

and asked where was Bedford Moore when Panorama was con-

sidered, Bedford Moore told him at a meeting that Mr.

Fleming attended and his lawyer attended. He said I was

right here. Sitting right in this room tending opposition but

there was a difference in the zoning. And a fine difference

perhaps, but not to an experienced realtor, not to a person

who has all those certificates that I asked him about and all

of that long experience. He knows that difference and he

L-15

knew the difference and the jury may so conclude that he

knew the difference between all of those. The only thing I

suppose on which there is some question is the Ivy Farm issue

in which he says well I did talk to Dr. Hurt and he did tell

me that Mr. Moore didn't oppose Ivy Farm. And that's sup-

posed to give credence to his conclusion that it was all a

racist conspiracy that Bedford Moore was hatching against

him. But he was impeached on that point. And his prior

sworn testimony was to the effect that he had never talked

to ... talked to Charlie Hurt about this development. He has

also told them what is a complete phoney, a complete red

herring and that's the racially restricted covenant which he

testified this man was also using against him. That was one

of the reasons he was convinced that it was racist. This was

one of the reasons he published the ad, that's a phoney, he

knows about these. He knows where they are. He knows

how they're indexed and it was abundantly clear that there

was nothing in any of those deeds that was to be used at

any time against him. Specific reference to not reimposing

any of those convenants and in point of fact he testified he

knew they were not enforceable. He was well aware of the

L-16

effect of Shelly v. Kramer from 1947 which ruled that those

things were by the boards, no longer enforceable. He said

there were no other buffers, Mr. Tucker has testified there

were certainly other buffers before this buffer. So far as the

origin of the buffer is concerned that perhaps is one of the

bigger problems that this defendant has. Because he alleges

the buffer was a brain child, children of Mr. Moore and that

it was Mr. Moore's creation. And the point of fact it was

not his creation. Mr. Moore was in fact surprised to learn it

was added as a condition when he attended a public meeting

after the staff had made it's report and put the condition in

there. And he attended that meeting, we know he attended

that meeting. The Planning Staff report was read to him at

that meeting in which, in great detail. Mr. Tucker read why

the buffer had been proposed, where it came from and what

it's purpose was. He knew that, and the jury may so con-

clude that he knew that. Never once did Bedford Moore

utter a single thing or do a single thing that indicated racial

anomalous toward this plainiff. We also know relating back

to this buffer and historic landmark designation that he knew

perfectly well this historic preservation was not a sham as he

L-17

alleges. And that was one of the reasons he put the ad in,

because he knew it was a sham, it was really because of

racist behavior, racist conspiracy. And the jury may certainly

disregard all of that. Finally, The Cavalier Daily, what can

the jury conclude about that? We know that this defendant

was upset with The Daily Progress because it had misiead it's

readers. And he said so I went to The Cavalier Daily. Now,

he claims he didn't know Mr. Moore taught there but he was

impeached on that. But he certainly testified he knew Mr.

Moore worked at the University. And he went into The

Cavalier Daily, a paper whose circulation was unknown to him

by his own testimony, didn't know who read it and he put his

ad in there.'\ He put his ad in there at a very peculiar junc-

ture in the history of the county and it's supervisors and the

collection. And I think the jury may safely conclude one of

the reasons why he didn't go back to create misconceptions in

the minds of the readers of The Daily Progress was that he

was not seeking to set the record straight. He went after a

tenured professor at the University of Virginia because he

knew where he lived and he could do some damage there.

He knew all about tenure. And if you read that ad straight

L-18

through there is no question that the only living person named

in that ad is referred to throughout the ad. I go through

that, perhaps it wasn't all necessary but suffice it to say

Your Honor, at this juncture there is no question but that the

jury can come back on every single issue that is our burden

and conclude in our favor and they may find by further con-

viction or belief that the leveled charges of racism and racist

behavior were known to be false by this defendant or and it

is in the disjunctive or were published with a reckless disre-

gard for the truth. And therefore it would be inappropriate

at this time to sustain a motion to strike. I reserve argu-

ment if we're going to have argument on whether Mr. Moore

has now become a public figure in spite of the fact the Su-

preme Court of Virginia said he wasn't. I don't know when

you want to take that up. I would suggest to the court in

light of the hour and the issue that that is something that

should only concern us at the time of jury instructions. It

really isn't something we have to take up right now. I think

we ought to limit ourselves to the other issues that relate to

our burden of proof. Thank you.

L-19

THE COURT: All right, anything further Mr.

Poindexter?

MR. POINDEXTER: No, no sir.

THE COURT: The Court has reviewed the evi-

dence as we've received it care fully and taking into view the

elements necessary to be proved for a plaintiff's verdict and

the degrees of proof required we believe that there is suffi-

cient evidence on each element to the degree required for the

jury to be able to make a finding for the plaintiff. We con-

sequently overrule the motion to strike. Now, I believe that's

about all we can do this evening gentlemen, so we will

reconvene tomorrow morning at 10:00.

MR. ALBRO: Your Honor, would I be correct in

understanding then that my first order of business ...

THE COURT: Your first order of business would

be to put on your evidence ...

MR. ALBRO: ... is to put on his wealth?

L-20

back if you'll remain outside and not come back into the

court room until the Bailiff admits you.

JURY IN RECESS.

THE COURT: _ All right, has counsel had an op-

portunity to compare instructions yet?

MR. ALBRO: No, sir, we've got a set.

THE COURT: [I'll give you about ten minutes to

compare instructions and that may enable us to direct our at-

tention to the areas of difference.

MR. POINDEXTER: Yes, sir, could we as a pre-

requisite could we start with a motion to strike?

THE COURT: Yes, Ill be glad to hear your mo-

tion. You may proceed with your motion.

MR. POINDEXTER: Yes, sir. Your Honor, first

we have to start way up here with the libel or defamation.

That can only be accomplished through an intent to use lan-

guage or word that hurts someone with a knowledge that what

you have said is false or you utterly disregard the facts as

you know t

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