# Appendix — Fleming v. Moore

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 472 U.S. 1032

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0177%3A2. Public record. Not legal advice.