Appendix — Fleming v. Moore

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JAMES N. FLEMING,

Petitioner,

Vv.

W. BEDFORD MOORE, I,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

APPENDIX

D. ALAN RUDLIN ERIC SCHNAPPER

W. Jeffery Edwards Counsel! of Record

HUNTON & WILLIAMS J. LeVonne Chambers

P. O. Box 1535

NAACP Legal Defense

Richmond, Virginia 23212 & Educational Fund, Inc.

(804) 788-8200 16th Floor

New York, New York 10013

J. BENJAMIN DICK

SAMUEL W. TUCKER

Suite 2 Hill, Tucker & Marsh

421 Park Street P. O. Box 27363

Charlottesville, Richmond, Virginia 23261

VA 22901

GERALD E. POINDEXTER

Surry Courthouse

Surry, VA

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JAMES N. FLEMING,

Petitioner,

Vv.

W. BEDFORD MOORE, I,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

APPENDIX

D. ALAN RUDLIN ERIC SCHNAPPER

W. Jeffery Edwards Counsel of Record

HUNTON & WILLIAMS - J. LeVonne Chambers

P. O. Box 1535 NAACP Legal Defense

Richmond, Virginia 23212 & Educational Fund, Inc.

(804) 788-8200 16th Floor

New York, New York 10013

J. BENJAMIN DICK SAMUEL W. TUCKER

Suite 2 Hill, Tucker & Marsh

421 Park Street P. O. Box 27363

Charlottesville, Richmond, Virginia 23261

VA 22901

GERALD E. POINDEXTER

Surry Courthouse

Surry, VA

TABLE OF CONTENTS

Circuit Court of Albemarle County,

Virginia, Final Judgment Order,

EE eee

Fleming v. Moore, 221 Va. 884,

8

Circuit Court of Albemarle County,

Virginia, Final Judgment Order,

Te tt ee 8

Circuit Court of Albemarle County,

Virginia, Letter from Judge F. W.

Semeur, at, MOTE 21, 196... ww cco veee

Supreme Court of Virginia, Order

granting appeal, June 7, 1984.............

Supeme Court of Virginia, Certificate,

I Pe oe ee ee

Fleming v. Moore, 229 Va. 783 (1985),

Cg ee

Supreme Court of Virginia, Mandate,

TE £256 6 pos bo oak ee se eee se

Circuit Court of Albemarle County,

Virginia, Remittitur Hearing, Transcript

CB ee

Circuit Court of Albemarie County,

Virginia, Final Judgment Order,

Ee

-j-

Supreme Court of Virginia, Order

denying Petition for Appeal,

eg eR er ce re ee ee 127

Supreme Court of Virginia, Order

denying Petition for Rehearing,

POR OF ROO 6s 8 AN Ok ee HO OS 129

Circuit Court of Albemarle County,

Virginia, Transcript pages 28-38,

PO 06 SE as Pa a ee oe OR 131

Circuit Court of Albemarle County,

Virginia, Transcript pages 21-23,

Ce Bh es Bs ORD ORs Roe Ree Oe 147

Circuit Court of Albemarle County,

Virginia, Transcript pages 373-87,

DiS ce; ACCU Bees BONE 6 6 8 8 i OEE SESS 152

Circuit Court of Albemarle County,

Virginia, Motion By James N. Fleming

To Set Aside Verdict And Enter Judgment

For Fleming Or, In The Alternative, For

A New Trial, November 19, 1962... 0s ccce cs es 187

James N. Fleming's Advertisement ............. 192

Circuit Court of Albemarle County,

Virginia, Motion to Dismiss,

CU SUPE bo 0k 6 Hae Ee ewe ee ee eee 195

Circuit Court of Albemarle County,

Virginia, Memorandum In Support Of

Motion To Set Aside Verdict Or For

New Trial, pages 14-25, 44-47, 57-59,

GS-68, NOVOMOOT BO, TGGS. . 5 ko ko 0k ok ess kee es 198

Circuit Court of Albemarle County,

Virginia, Transcript pages 374-375,

CORUIOT BOs os bn 6s CRG OR ae Bee eee 233

-j]-

Circuit Court of Albemarle County,

Virginia, Transcript pages 514-522,

ee SES 46 44 O66 8 Oe Oe ee 6 237

Circuit Court of Albemarle County,

Virginia, Reply Memorandum On Behalf

Of James N. Fleming, pages 14-18,

ao ay SEE. EL yg CUBS 6.0 8 oe 0 ete 8 0 oe 250

Supreme Court of Virginia, Petition

For Appeal - Assignments of Error and

Questions Presented, pages 28, 30-31,

DOOURTIE By LUGO 6 chk ewer e ace eee ecrnenncns 263

Supreme Court of Virginia, Appellant's

Brief, pages 35-36, July 18, 1984.............0.. 273

Supreme Court of Virginia, Petition for

Appeal - Assignments of Error and Questions

PEGRONIOG, RUE BB, AGES ccc ck cece se nceess 277

Supreme Court of Virginia, Petition for

Rehearing, pages 2 and 9, April 1986............ 279

-iii-

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, I,

Plaintiff,

Vv.

JAMES N. FLEMING,

Defendant.

Law No.

April 28, 1978

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 Mo-

tions 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 Continu-

ance, Motion for Judgment by Default, 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 Defen-

dant's Motion for Summary Judgment and Motion for a

Continuance were overruled. On the same date, Plain-

tiff 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 concludes with the

words "race or ethnic origin.” Plaintiff's Motion for

Leave to Amend his Motion for Judgment was denied as

to the remainder of said numbered paragraph (6) which

follows the sentence ending with the words "race or eth-

nie origin,” 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 Plain-

tiff's Amended Motion for Judgment, Motion for Contin-

uance, 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 Justification was struck in part and

Defendant's Amended Grounds of Defense to Plaintiff's

Amended Motion for Judgment were allowed through

paragraph (4) thereof, and paragraphs (5) through (8)

thereof were stricken.

On December 6, 1977, again the parties, by

counsel, 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 mistrial, which motion was con-

sidered by the Court and overruled. Three members of

the venire were excused for cause by the Court and re-

placed by three additional members who were duly

sworn and examinea. The venire wag 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 argued by counsel, duly considered by

the Court and overruled. To which ruling the Defendant

objected and noted his exceptions. The Defendant then

introduced his evidence and rested. Whereupon counsel

for the Plaintiff moved to strike Defendant's evidence

regarding his counterclaim. Defendant immediately

took a nonsuit on his counterclaim before the Court

ruled on Plaintiff's motion to strike.

One of the grounds advanced by the Defen-

dant for his motion to strike was that the publication

was not libelous per se and that plaintiff's evidence dis-

closed no proof of specific damages, which ground the

Court duly noted, overruled and found that such

publication was libelous per se, to which ruling the de-

fendant duly objected and excepted. Likewise, in sup-

port of his objection to the instructions, defendant ad-

vanced the same ground, upon which the same rulings

were made by the Court and the defendant duly noted

his objections and exceptions.

Whereupon, the Court received proposed

instructions 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 and objections with regard to the in-

Structions. Thereupon, the Court instructed the jury and

counsel made their closing arguments.

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

punitive 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 Defendant or in the alternative, to set aside the ver-

dict 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 subse-

quently allowed each party three additional days to sub-

mit his authority and argument. By agreement of coun-

sel, the Defendant's motion was then submitted to the

Court for its decision and after mature consideration,

the Court was of the opinion that Defendant's motions

should be and were in every respect denied, to which ac-

tion 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 Defen-

dant's motion for Summary Judgment, ete. After hear-

ing argument of counsel and having duly considered the

same the Court doth hereby deny said motion, to which

defendant duly objects and excepts.

On the same date last mentioned came the

parties by counsel to be heard upon defendant's motion

for Remittitur. U on evidence introduced by the Defen-

dant in support thereof, to which evidence plaintiff ob-

jected, 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 Defen-

dant, James N. Fleming, in accordance with the afore-

said 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

indicated his intention to petition the Supreme Court of

Virginia for an appeal, execution of this judgment is sus-

pended 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 approved surety.

And the transcript is hereby made a part of the record.

ENTER: /s/ David F. Berry

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

JAMES N. FLEMING,

Appellant,

against

W. BEDFORD MOORE, I,

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 damag-

es and $100,000 in punitive damages. 1/

1/ During oral argument, a motion to dismiss for

failure to remedy defects in the appeal bond was re-

newed. On February 21, 1979, when the appeal was

awarded, bond was set by this Court at $120,000. On

(continued)

-10-

Moore was a white, tenured, assistant pro-

fessor in the Humanities Division of the School of Engi-

neering at the University of Virginia during the 1975-76

academic year. His residence known as "Shack Moun-

tain", 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.

Fleming, a black real estate broker and de-

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

the Planning Commission and then from the Board of Su-

pervisors of Albemarle County, to have "Evergreen"

rezoned from Agriculture to Residential Planned Unit

Deveiopment. Upon rezoning, Fleming proposed to con-

struct a planned unit development of high-density

(continued from previous page)

March 6, 1979, the Clerk of the Circuit Court certified

that Fleming had appeared before her and given bond in

the amount of $120,000 with approved surety. We there-

fore overrule the motion to dismiss. See Code

§ 8.01-676; Rule 5:31.

-ll-

residential units for a predominantly black, lower-

middle-income group of occupants.

The Planning Commission and Board of Su-

pervisors 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 Reser-

voir, 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 application for rezoning were to be approved,

a tree buffer should be required along the boundary line

between the "Evergreen" and "Shack Mountain" prop-

erties. 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

-12-

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 Super-

visors in December, 1975.

In January, 1976, Fleming published in two

newspapers a paid advertisement captioned "RACISM" in

which Moore was identified by name. The advertise-

ment appeared in the Charlottesville-Albemarle

Tribune, a newspaper of general circulation in the com-

munity, 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

follows:

(Paid Advertisement)

RACISM

I have endeavored to realize the opportuni-

ty to provide housing and pleasant sur-

roundings for working people--the sort of

people who made this the great country

that it is.

I do not expect any Farmington members

(continued)

-13-

(continued from previous page)

to buy my houses. The tenured position-

holders 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 fact

that here in Mr. Jefferson's country 200

years after his vision of Situating his be-

‘ loved Monticello upon the hilltop over-

looking the developing community we have

a replica of Monticello upon the hill over-

looking my property 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 a 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 repeatedly

shown by their expression 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 peo-

ple who are living off of our work. I know

(continued)

-14-

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 the jury upon such a theory.3/ At

(continued from previous page)

that this Country did not achieve the high-

est 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 violent-

ly opposed by the same people who oppose

my proposed neighborhood.

Pollution of the reservoir is being used as

the current excuse to foster no-growth.

The solution, of course, is to remove the

guaranteed incomes of these greedy people

and put them in the position of seeing the

world through the eyes of one seeking the

opportunity to improve: his or her living

standard. Only then would they admit that

the pollution excuse is a sham.

I will develop Evergreen, and a lot of peo-

ple 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 de-

(continued)

-15-

eee

trial, counsel for Fleming conceded that the trial court,

rather than the jury, should determine whether the arti-

cle was libelous per se, but he objected to the determi-

nation made by the court.

Unlike most states, Virginia makes no dis-

tinction between actions for libel and those for slander.

Shupe v. Rose's Stores, 213 Va. 374, 375-76, 192 S.E.2d

(continued from previous page)

famatory per se. 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 instructions informed the jury that Moore was

presumed to have suffered 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 defamation 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, 446-48, 94

S.E.2d 260, 266 (1956). Since the jury instructions al-

lowed the jury to presume damages, the case was pres-

ented to the jury on the theory of per se defamation

even if Instruction No. 8 was not given.

-16-

766, 767 (1972); see Note, Defamation in Virginia--A

Merger of Libel and Slander, 47 Va. L. Rev. 1116 (1961);

W. Prosser, Torts § 112, 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 defamatory language is ac-

tionable according to the following principles:

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 per-

son is infected with some contagious

disease, where if the charge is true,

it would exclude the party from so-

ciety. (3) Those which impute to a

person unfitness to perform the du-

ties of an office or employment of

profit, or want of integrity in the

discharge of the duties of such an

office or employment. (4) Those

which prejudice such person in his

or her profession or trade. All other

defamatory words which, though not

in themselves actionable, occasion a

person special damages are action-

able.

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

-17-

v. Richmond Newspapers, 196 Va. 1, 7, 82 S.E.2d 588,

591 (1954).

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 defama-

tion in the present case could only be based upon the ef-

fect 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

damages", we have held that the words must contain an

imputation that is “necessarily hurtful" in its effect

upon plaintiff's business and must affect him in his par-

ticular 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 state-

ment and the skills or character required to carry out

the particular occupation of the plaintiff. Restatement

-18-

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

ple, because an attorney is required to adhere to the dis-

ciplinary rules, charging an attorney with unethical con-

duct 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 "necessarily hurtful" to a plaintiff's business and tou-

ches the plaintiff in his special trade or occupation.

The allegation that a person has refused to pay a money

debt is not per se defamatory if that person is not en-

gaged in a vocation in which credit 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 no-

tice that credit is being denied to a bookkeeper-

secretary does not toweh 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

-19-

defamatory where the defamation is not "necessarily

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

plaintiff in his special trade or occupation.4/

Because libel actions in Virginia are gov-

erned by common-law rules applicable to slander ac-

tions, libel cases from other jurisdictions are not help-

ful.5/ 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

_

4/ "Thus, a statement that a physician consorts with

harlots is not actionable per se, although a charge that

he makes improper advances to his patients is action-

able.” The former statement does not necessarily affect

his reputation as a physician but the latter directly af-

fects 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 alle-

gations of racial intolerance, most of the cases concern

libelous, not slanderous, statements. In most jurisdic-

tions, 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.

-20-

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) (allega-

tion that an engineer was a Communist held not to be

slanderous per se).

{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.6/ We

conclude that, while the allegation might have adversely

affected Moore's work, the statements did not

necessarily affect him in his particular profession 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 em-

ployment and advecsely affected Moore in his capacity

as a teacher. The consequence of this erroneous ruling,

6/ The advertisement did not allege, for example,

that Moore discriminated against the black students in

his classes.

-21i-

requiring reversal and remand for a new trial, vas that

the jury was allowed to presume general damages and

also to award punitive damages based on the presumed

damages.

Since this case must be remanded for a

new trial, we will resolve other issues that otherwise

may arise again upon retrial.

[4] Fleming contends that Moore was a

public figure and thus could not recover damages for

defamation in the absence of a showing that the state-

ment was made with “actual 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 fol-

lowing description of a public figure:

For the most part those who attain

this status [of public figure] have

assumed roles of especial promi-

nence in the affairs of society.

Some occupy positions of such per-

Suasive power and influence that

they are deemed public figures for

all purposes. More commonly, those

-22-

classed as public figures have thrust

themselves to the forefront of par-

ticular public controversies in order

to influence the resolution of the is-

sues involved. In either event, they

invite attention and comment.

[5] Moore, a teacher at the University of

Virginia, 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 "Ever-

green” proposal he was a public figure for that limited

purpose.

We do not believe that Moore's role in the

public hear.ngs concerning "Evergreen" merits his clas-

sification as a public figure. Gertz cautioned that a

court must focus upon the "nature and extent of an indi-

vidual's participation in the particular controversy giv-

ing rise to the defamation". 418 U.S. at 352. The mere

fact that Moore spoke twice in public hearings concern-

ing the "Evergreen" proposal is not determinative since

his use of the public forum substantially resulted from

his desire to protect his private interests. In Time, Inc.

-23-

v. Firestone, 424 U.S. 448 (1976), the Court held that re-

sort to the judicial process in order to vindicate private

rights did not make the plaintiff a public figure. This

reasoning appears equally applicable here, where Moore

resorted 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 at-

tempt 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 develop-

ment, we conclude that he was not a public figure.

Therefore, he was not required to show, as a prerequi-

site to recovery of compensatory damages, that Fleming

acted with malice that met the New York Times stan-

dard.

{6] Fleming further contends, however,

that even if Moore was not a public figure, the trial

court erred in allowing the jury to award punitive

-24-

damages on the basis of common-law malice.7/_ In

Gertz, the Court condemned the awarding of either pre-

sumed or punitive damages, "at least when liability is

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

less disregard for the truth".8/ 418 U.S. at 349. The

award of damages without proof of "actual injury"9/ was

condemned as "invit{ing] juries to punish unpopular

opinion rather than to compensate individuals for injury

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

that punitive damages could be awarded if the jury be-

lieved from a preponderance of the evidence that

Fleming acted with "actual malice”, that is, that he "was

motivated by revenge, personal spite, ill will or a desire

to injure the Plaintiff".

8/ Since we have ruled that Moore may not recover

presumed damages because the article was not libelous

per se, we do not reach Fleming's contention that Gertz

would prohibit the awarding of presumed damages with-

out a showing of knowing falsity or reckless disregard

for the truth.

9/ The opinion noted that damages for "actual inju-

ry" are not limited to out-of-pocket loss, and that trial .

courts are permitted to compensate for impairment of

reputation and standing in the community, personal hu-

miliation, and mental anguish and suffering. Awards

must be supported by competent evidence, although it is

not necessary that the evidence assign a dollar value to

the injury. 418 U.S. at 350.

-25-

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 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 evi-

dence" 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 wheth-

er the First Amendment requires application of the New

York Times rule in cases involving non-media defen-

dants. Hutchinson v. Proxmire, 443 U.S. 111, 133-34 n.

16 (1979).10/ Since Fleming is not a media defendant and

10/_ Lower courts are divided on whether the First

Amendment protections provided media defendants in

New York 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.

(continued)

-26-

Moore is not a public figure, Gertz does not control the

present case. Nevertheless, we share the concern ex-

pressed in Gertz at the assessment 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 puni-

tive damages must be structured upon the same standard

of proof of "actual malice", as defined in New York

Times, applied in Gertz, and followed in Burke, that is

(continued from previous page)

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

refused 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); Millsaps v. Bankers Life Company, 35 Ill, App. 3d

735, 342 N.E.2d 329 (1976); Jacron Sales Co. v. Sindorf,

276 Md. 580, 350 A.2d 688 (1976), aff'g 27 Md. App. 53,

341 A.2d 856 (1975); Ryder Truck Rentals v. Latham, 593

S.W.2d 334 (Tex. Civ. App. 1979). See J. Eaton, The

American Law of Defamation Through Gertz v. Robert

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

L. Rev. 1349, 1417 (1975), predicting extension by the

Supreme Court of Gertz to defamation suits against non-

media defendants where the defamatory falsehood was

published by the press.

-27-

required in defamation actions against media defen-

dants, 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 exception 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 actionable

per se, the exception is not applicable.

[8] Moore did not allege or prove that he

suffered 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 disregard for t' 2 truth is not

shown, the compensatory damages should be limited to

the actual damages proved to have been sustained, but

-28-

such damages should not necessarily be restricted to out-

of-pocket loss. See fn. 10 supra. Therefore, we hold

that Moore is entitled to recover compensatory damages

upon proof of actual injury, including such elements as

damage to his reputation and Standing in the community,

embarrassment, humiliation, and mental suffering.

"Special damages", which under the common-law rule

must be shown as a prerequisite to recovery where the

defamatory words are not actionable per se, are not to

be limited to pecuniary loss. To the extent that lan-

guage in Shupe may be construed to indicate that emo- .

tional upset and embarrassment cannot constitute "spe-

cial 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 ex-

pressed.

Reversed and remanded.

-29-

HARRISON, J., dissenting.

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

in this case to be shocking. It is inconceivable that a re-

spected professor, as is Mr. Moore, could have been

damaged in the University community or elsewhere by

the "advertisement" which appeared at the behest of Mr.

Fleming.

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 abandon. People of all races currently

utilize these terms to voice their innumerable rea! 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 allegedly grounded

in "racism", or "reverse racism.”

When we examine the advertisement in-

serted 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

-30-

professors and feels that without their financial security

they would be more sympathetic to the "have nots.” The

advertisement then makes a comparison between

Thomas Jefferson and Professor Moore in which the lat-

ter 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.

The advertisement is in bad taste and is ill-

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

conceived and intemperate diatribe by an irate, disap-

pointed, 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 “predominantly black, lower-

middle-income” development adjoining his property.

However, this reaction by Fleming was predictable 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 zoning. The language of the market place is

not always restrained, reasonable, or temperate. It is

often sharp and unfair, and sometimes raucous, biting,

and cruel.

Although the indignation of Professor

Moore is understandable we should not allow the publica-

tion involved here to be the predicate of an action for

libel and an award of damages. I would enter final judg-

ment for the defendant.

-~32-

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Il,

Plaintiff,

Vv.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

June 3, 1983

VIRGINIA:

IN THE CIRCUIT COURT OF ALBEMARLE COUNTY

W. BEDFORD MOORE, I,

Plaintiff,

v. AT LAW NO. 976

JAMES N. FLEMING,

ee ee ee ee ee ee ee ee ee

Defendant.

FINAL JUDGMENT ORDER

On October 21, 1982 came the parties, in

-~33-

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

a venire facias heretofore issued. The venire was duly

sworn and examined by the Court. One member of the

venire was excused for cause by the Court and replaced

by one additional member who was duly sworn and ex-

amined. Counsel for the Plaintiff and counsel for the

Defendant each alternately struck three members from

the panel, leaving seven veniremen. Defendant 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, counse! for

Defendant moved to strike the Plaintiff's evidence,

which motion was argued by counsel, duly considered by

the Court and overruled, to which ruling the Defendant

objected and noted his exveptions. 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.

-34-

Whereupon, the Court received proposed

instructions 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.

After due deliberation, the jury returned to

‘the courtroom with the following written verdict:

We, the jury, upon the law and the evi-

dence, find our verdict for the plaintiff, Ww.

Bedford Moore, Ill, against the defendant

and award him compensatory damages in

the amount of $100,000.00 and punitive

damages in the amount of $250,000.00, to-

gether 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

-35-

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 In Opposition

To Motion To Set Aside Verdict For A New Trial. By 'et-

ter 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 remitti-

tur. After consideration, the Court denied Defendant'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 DE-

CREED that the Plaintiff have judgment against the De-

fendant, James N. Fleming, in accordance with the

aforesaid verdict of the jury in the sum of Three Hun-

dred Fifty Thousand Dollars ($350,000.00) and costs, and

interest at the rate of twelve (12) percent per annum on

-36-

the sum of Two Hundred Fifty Thousand Dollars

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

It is FURTHER ADJUDGED, ORDERED

AND DECREED that, pursuant to Rule 5:9, Rules of the

Supreme Court of Virginia, the transcript of hearings

ore tenus aeld 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 Court hereby ORDERS that execu-

tion of this judgment is suspended so long as Defendant

timely prosecutes the appeal and thereafter so long as

the matter is under considerat.9n 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) days of the entry of this

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

in the penalty of two hundred fifty thousand Dollars

-37-

($250,000.00) reciting this judgment, and Defendant's in-

tention to present a petition for appeal and the other

conditions set forth in Section 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:

/s/L. B. Cann, I

D. Alan Rudlin

L. B. Cann, I

Hunton & Williams

P. O. Box 1535

Richmond, VA 23219

-38-

Gerald G. Poindexter

P. O. Box 766

Surry, VA 23883

Counsel for defendant

-39-

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, I,

Plaintiff,

v.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

April 21, 1983

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

-40-

April 21, 1983

Thomas E. Albro, Esquire

John Charles Thomas, Esquire

Gerald G. Poindexter, Esquire

page 2

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

motions 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 in-

structed.

On the question as to whether or not the

evidence 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 restricted to out-of-pocket loss.

"...Moore is entitled to recover compensatory damages

upon proof of actual injury including such elements as

damage to his reputation and standing in the community,

embarrassment, humiliation, and mental suffering.” We

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

tual injury, when so defined.

-41-

April 21, 1983

Thomas E. Albre, Esquire

John Charles Thomas, Esquire

Gerald G. Poindexter, Esquire

page 3

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 state-

ments interjected deliberately into a highly sensitive ac-

ademic community 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 con-

science of the community. Apparently this was a jury

that felt strongly about the curse of racism and wished

to make a strong statement 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.

-492-

April 21, 1983

Thomas E. Albro, Esquire

John Charles Thomas, Esquire

Gerald G. Poindeyter, Esquire

page 4

Sincerely,

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

F. W. Harkrader, Jr., Judge

FWHjr/bl

ec: Shelby Marshall, Clerk

: ‘

‘a.

lable for fi

lend

ada D ig!

SUPREME COURT OF VIRGINIA

JAMES N. FLEMING,

Appellant,

~against-

W. BEDFORD MOORE, Ii,

Appellee.

Record No. 831446

June 7, 1984

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Thursday the

7th day of June, 1984

James N. Fleming, Appellant,

against Record No. 831446

Circuit Court No. 976-L

W. Bedford Moore, II, 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 depend-

ing, wherein W. Bedford Moore, III, was plaintiff and the

petitioner was defendant.

And it appearing that an appeal bond in

the penalty of $250,000, conditioned according to law,

has heretofore been given in accordance with the provi-

sions of section 8.01-676 of the Code, additional bond is

required in the amount of $460,000.

This appeal, however, is limited to the

consideration of assignments of error D, E, G and H

which read as follows:

D The jury's award is so excessive that

it indicates the jury was influenced by passion, prejudice

or corruption, or misconceived or misconstrued the law

or facts.

E The jury's award of prejudgment in-

terest at the rate of 12% per annum is contrary to law

because prejudgment interest is not allowable on puni-

tive damages and, further, because 12% exceeds the

maximum allowable rate of prejudgment interest.

-51-

I

G The trial court erred in refusing to

instruct the jury that, in order to find Fleming liable for

compensatory damages, it must find that Fleming knew

what he was publishing was false or had reckless disre-

gard 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 insufficient evidence on which the jury could

conclude that Fleming knew what he was publishing was

false or had reckless disregard for whether or not it was

true.

On further consideration whereof, it is or-

dered that the parts of the record to be printed or re-

produced 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 relevant to the assignments of error

upon which this appeal is awarded.

The petition for appeal! is refused as to the

remaining assignments of error.

-52-

A Copy,

Teste:/s/ Allen L. Lucy

Clerk

-5 3-

Supreme Court of Virginia

James N. Fleming, Appellant,

against Record No. 831446

Circuit Court No. 976-L

W. Bedford Moore, I, Appellee.

From the Circuit Court of Albemarle County

CERTIFICATE

Pursuant to Rule 5:30 of the Rules of the

Supreme 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 depend-

ing 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 appeal, was this day mailed to the court below and to

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

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

-54-

SS —

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

23212 .

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

JAMES N. FLEMING,

Appellant,

~against-

W. BEDFORD MOORE, I,

Appellee.

Record No. 831446

February 1, 1985

229 Va. 783

(Pages 783-804, 839-58)

In one opinion, we decide four libe! ap-

peals. The plaintiffs are private individuals, not public

officials or public figures. Three of the appeals are

based on suits against members of the print media. In

the fourth appeal, the defendant is a private person.

Judgments for compensatory damages have been 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 compensatory damages in a libel action in Virginia,

-56-

given the developments in federal constitutional law on

the subject of libel beginning with New York Times Co.

v. Sullivan, 376 U.S. 254 (1964). Adjudication of this

central question will spawn subsidiary issues common to

all the suits. In addition, the awards of punitive damag-

es generate issues common to those two cases. The

common questions of law will be analyzed in the first

sections of this opinion and, in succeeding sections, the

issues peculiar to a specific case will be adjudicated in

the section of the opinion devoted to such case.

I. The Dominant Issue

A. Virginia Background

In Virginia, as in other states, the law of

defamation historically has protected a basic interest.

The individual's right to personal security includes his

uninterrupted entitlement to enjoyment of his reputa-

tion. Fuller v. Edwards, 180 Va. 191, 197, 22 S.E.2d 26,

29 (1942). "Society has a pervasive and strong interest

in preventing and redressing attacks upon reputation.

Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

-57-

Under the general framework of defama-

tion law in Virginia prior to 1964, the beginning of a pe-

riod when major aspects of libel law became federalized,

the defamed private citizen had to prove only a false

Publication that included words which were either ac-

tionable per se according to certain fixed principles, or,

if not defamatory per se, words which resulted in special

damages to the party defamed. See M. Rosenberg &

sons v. Craft, 182 Va. 512, 518, 29 S.F.2d 375, 378 (1944).

Upon such publication,11/ malice was inferred and dam-

age to reputation was presumed. See Note, Defamat‘ in

in Virginia - A Merger of Libel and Slander, 47 Va.L.Rev.

1116, 1117 (1961). And, unless the otherwise libelous

Statement was privileged or the defendant could estab-

lish its truth, Rosenberg v. Mason, 157 Va. 215, 228, 160

S.E. 190, 195 (1931), the publisher was liable for com-

pensatory damages. Upon proof of common-law actual

11/__—‘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).

or express malice, the plaintiff was entitled to an award

of punitive damages. James v. Haymes, 160 Va. 253,

263, 168 S.E. 333, 337 (1933).

Commencing in 1964, however, a series of

decisions of the United States Supreme Court caused sig-

nificant changes in the law of libel.

B. Pertinent Supreme Court Decisions

In New York Times Co. v. Sullivan, the Su-

preme 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 to provide safe-

guards 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 federél rule that prohibits a public official

from recovering damages for a defamatory falsehood

relating to his official conduct unless he proves that the

statement was made with ‘actual malice’ - that is, with

knowledge that it was false or with reckless disregard of

whether it was false or not." 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 crimi-

nal 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 'publie 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 adhered to by re-

sponsible publishers." Id. at 155. In holding that the

standard had been met by the plaintiff in Butts, but not

in the companion case of Associated Press v. Walker (de-

cided in the same opinion), the Court rejected the

-§0-

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 se-

vere enough to strip from him the constitutional pro-

tection our decision acknowledges, we think it entirely

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

the individual injured but to safeguard all those similarly

situated against like abuse." Id. at 161.

In St. Amant v. Thompson, 390 U.S. 727

(1968), the Court identified evidence that may be em-

ployed to establish New York Times "actual malice."

The majority, through Justice White, noted that "evi-

dence of either deliberate falsification or reckless publi-

cation 'despite the publisher's awareness of probable fal-

sity' was essential to recovery by public officials 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 unverified anonymous telephone call; printing

-6§1-

allegations so inherently improbable that only a reckless

person would put them in circulation; and publication of

an article despite obvious reasons to doubt the truth and

veracity of the informant upon whom the article relies

for accuracy. Id. at 732. The Court said that failure to

investigate will not in itself establish bad faith, id. at

733, but stated that a "defendant in a defamation action

brought by a public official cannot .. . automatically in-

sure a favorable verdict by testifying 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 plurality of the Court, through Justice

Brennan, extended the New York Times "actual malice"

standard to publications relating to all matters of public

or general concern, irrespective of the public or private

nature of the plaintiff. In rejecting the suggested dis-

tinction between public officials and public figures on

the one hand and private individuals on the other, Jus-

tice 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

-§2-

the alleged libel involved a matter of public or general

concern, the fact finder should then consider whether

New York Times malice had been proved, paying no heed

to the plaintiff's status.

Three years later, in Gertz v. Robert

Welch, Inc., 418 U.S. 323 (1974), the Supreme Court ex-

pressly repudiated its holding in Rosenbloom. One com-

mentator 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 em-

ployed to represent 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."

-§3-

Justice Powell, writing for the majority,

articulated several important holdings defining "the

proper accommodation between the law of defamation

and the freedoms of speech and press protected by the

First Amendment." 418 U.S. at 325. First, the Court re-

affirmed its rulings in New York Times and Butts Stating

that public officials and public figures may recover for

defamation only upon clear and convincing proof of New

York Times malice. Second, the Court made clear that

all persons, public or private, May recover presumed or

punitive damages only upon clear and convincing proof

of New York Times malice.

Third, and most important for purposes of

the cases at bar, the Court held "that, so long as they do

not impose liability without fault, the States may define

for themselves the appropriate standard of liability for a

publisher or broadcaster of defamatory falsehood injuri-

ous to a private individual." Id. at 347. Justice Powel]

Stated that this approach establishes an equitable bound-

ary between the competing interests involved. "It rec-

ognizes the strength of the legitimate state interest in

-64-

compensating private individuals for wrongful injury to

reputation, yet shields the press and broadeast media

from the rigors of strict liability for defamation." Id. at

348.

The Court, however, expressly limited the

applicability of a fault standard. Such limitation has not

been sufficiently emphasized in many of the decisions

and comments based on Gertz, but we think recognition

of the limitation is essential to an accurate analysis of

the decision. The Court said, quoting from Butts, the

applicability of a fault standard must be restricted to

circumstances where "the substance of the defamatory

statement 'makes substantial danger to reputation ap-

parent.” Id. Continuing, the Court stated: "Our inquiry

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, Ine. v.

Firestone, 424 U.S. 448, 464-65 (1976) (Powell, J., con-

curring).

-65-

In addition, the Court said that the State's

interest in compensating private individuals for injury to

reputation extends no further than compensation for ac-

tual 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. Finally, the Court rejected

the Rosenbloom plurality's requirement that judges must

consider whether publications address issues of "general

or public interest," stating that such a test "for de-

termining the applicability of the New York Times stan-

dard 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 Supreme Court rejected a plea “that the balance

struck in New York Times should now be modified to

provide further protections for the press when sued for

circulating erroneous information 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

-66-

press freedoms," has been repeatedly affirmed in suc-

ceeding cases. Id. The Court aiso pointed out, however,

citing Firestone and Gertz, that "the Court has reiter-

ated its conviction--reflected in the laws of defamation

of all of the Staten—that the individual's interest in his

reputation is also a basie concern." Id.

\

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 mat-

ters 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 publica-

tion.” Newspaper Publishing Corp. v. Burke, 216 Va.

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

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

1970 respectively, for the proposition that, where

defendants’ statements were qualifiedly privileged, the

Plaintiff bears the burden to 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 errone-

ously instructed the jury, in violation of the Gertz admo-

nition, that the newspaper defendant could be adjudged

liable without fault to the private plaintiffs. Addition-

ally, the Court determined that the trial court incor-

rectly told the jury that an award of punitive damages

could be premised upon a finding of common-law malice

rather than New York Times "actual malice."12/ Fur-

thermore, while recognizing that we could define our

Own Standard for recovery of actual, compensatory dam-

ages aS authorized by Gertz, we chose not to formulate a

12/ ‘For a definition of common-law malice, see also

Preston v. Land, 220 Va. 118, 120-21, 255 S.E.2d 909, 511

(1979), a post-Gertz case of slander among private indi-

viduals in which the federal libel standards were not in

issue.

-68-

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 1), a suit against a

non-media defendant and the precursor to the instant

ease of the same name, we decided that the publication

was not defamatory per se; that the plaintiff, a private

individual, did not forfeit his private status by speaking

at public hearings involving land use proposals; that be-

cause the plaintiff Moore was not a public figure, he was

not required to show New York Times malice as a pre-

requisite 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 dam-

ages, 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) injuries sustained. We decided,

-6§9-

however, that actual injury was not confined to pecu-

niary loss but included such elements as damage to repu-

tation and standing in the community, embarrassment,

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

indicated that emotional upset and embarrassment can-

not constitute "special damages." 221 Va. at 894, 275

S.E.2d at 639.

In Fleming I, we further decided that Gertz

did not control because the Gertz rule was not explicitly

extended to non-media defendants. We stated, never-

theless, that we share the Gertz concern with the as-

sessment by juries of punitive 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

Standard that is applicable to media defendants, that is.

clear and convincing proof of knowledge of falsity or

reckless disregard for the truth.

l

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., ar-

gues that "a negligence standard is no standard at all"

and that such a requirement "simply does not provide

the protection needed to ensure a free and open press."

Asserting that the matters involved in these four ap-

peals involve issues of public convern, the defendants

contend that our pre-Gertz Sanders decision is control-

ling and that liability for the alleged defamations re-

quires proof of New York Times "actual malice.” We do

not agree.

-7 1-

The Supreme Court in Gertz left little

doubt that it expected many of the states to adopt a

negligenee standard. Justice Powell, while noting that

allowance of presumed damages would unnecessarily ex-

acerbate the danger of media self-censorship, stated

that the policy considerations concerning punitive-

damage awards are "wholly irrelevant to the state inter-

est that justifies a negligence standard for private defa-

mation 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 negli-

gence, aS contrasted with a showing of willful or reck-

less disregard... ." Id. at 353. Chief Justice Burger,

dissenting, said that the Majority "introduces the con-

cept that the media will be liable for negligence in pub-

lishing defamatory statements with respect to [ordinary

private citizens]. Id. at 355. Justice Brennan, dissent-

ing, forecast adoption of "a reasonable-care Standard" by

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

Id. at 366. Justice White, dissenting and deploring the

"additional burden on the plaintiff of proving negligence

-72-

or other fault,” stated that "[u]nder the new rule the

plaintiff can lose, not because the statement is true, but

because it was not negligently made." Id. at 376.

Certainly, despite the Supreme Court's

forecasts, we properly may choose to adopt as a matter

of state law a stricter standard than ordinary negli-

gence. We will not do so. Indeed, while we did not ex-

plicitly fix the standard in Fleming I, we implicitly indi-

cated 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 prerequi-

site to recovery of compensatory damages, that Fleming

acted with malice that met the New York Times stan-

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

We hoid, therefore, that in an action

brought by a private individual to recover actual, com-

pensatory damages for a defamatory publication, the

plaintiff may recover upon proof by a preponderance of

the evidence that the publication was false, and that the

defendant either knew it to be false, or believing it to be

true, lacked reasonable grounds for such belief, or acted

negligently in failing to ascertain the facts on which the

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, be-

cause 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 publi-

cation in question relates to a matter of public or gener-

al concern.

The application of this negligence standard

is expressly limited, however, to circumstances where

the defamatory statement makes substantial danger to

reputation apparent. The trial judge shall make such de-

termination 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 es-

tablished to recover compensatory damages.

Nothing in the publie policy of the Com-

monwealth or in our prior decisions requires adoption of

a Standard higher than one of ordinary negligence. The

Constitution of Virginia does not mandate embracement

of a more stringent standard. Article I, § 12 provides, in

part, "that any citizen may freely speak, write, and pub-

lish his sentiments on all subjects, being responsible for

the abuse of that right... ." That provision recognizes

the balance to be struck between the right of free ex-

pression 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 control-

ling, because it was decided before Gertz and was based

on Rosenbloom, nor are any of our other cases.

Moreover, we think that a negligence test

strikes a proper balance between the rights of the news

media and the rights of private individuals. As noted in

Gertz, the private individual is more vulnerable to injury

to reputation inflicted by defamatory falsehood than are

publie officials and public figures who ordinarily "enjoy

significantly greater access to channels of effective

communication and hence have a 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 protecting the private individual is greater

than in the case of a non-private person.

In addition, we believe that the negligence

Standard will not result in self-censorship, as the media

defendants argue, and that the duty of reasonable care is

an acceptable burden for the press to bear. After all,

the concept of negligence is fundamental to the imposi-

tion of tort liability in Virginia in the great majority of

legal relationships that are created daily, and we have

not been convinced that the publisher of the defamatory

falsehood should be elevated to a preferred status for

the assessment of liability for the harm caused by such a

tort. Neither the intentional lie nor the negligent error

Substantially advances society's interest in uninhibited

and robust debate. See id. at 340.

-76-

Also, the limitations we have placed on the

rule will serve to insulate the publisher from liability

based on a publication the content of which does not

warn a reasonably prudent editor or broadcaster of its

defamatory potential. In such a case, New York Times

malice must be established in order to recover compen-

satory damages. The mere negligent error or the care-

less misstatement of fact which, on its face, does not

appear to be defamatory will not result in liability for

compensatory damages being imposed on the publisher.

Finally, the standard we adopt today is in

accord with the rule embraced by a substantial number

of the states that have decided the issue since Gertz.

See E. Collins and J Drushal, The Reaction of the State

Courts to Gertz v. Robert Welch, Inc., 28 Case

W.Res.L.Rev. 306 (1978). To date, at least 30 states and

the District of Columbia have adopted a negligence

standard in media cases involving private persons, either

after discussing the issue or without discussing the ques-

tion.13/ Also, two federal courts interpreting Virginia

13/. The eases that discuss the issue are: Peagler v.

Phoenix Newspapers, Inc., 114 Ariz. 309, 560 P.2d 1216

(continued)

law after Gertz anticipated that we would adopt a negli-

gence standard. See General Products Co. v. Meredith

(continued from previous page)

(1977); Dodrill v. Arkansas Democrat Co., 265 Ark. 628,

990 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076 (1980):

Phillips v. Evening Star Newspaper Co., 424 A.2d 78

(D.C. 1980), cert. denied, 451 U.S. 989 (1981); Miami

Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. App.

1982); Cahill v. Hawaiian Paradise Park Corp., 56 Hawaii

922, 543 P.2d 1356 (1975); Troman v. Wood, 62 Ill.2d 184,

340 N.E.2d 292 (1975); Gobin v. Globe Publishing Co., 216

Kan. 223, 531 P.2d 76 (1975); MeCall v. Courier-Journal!

& Louisville Publishing Co., 623 S.W.2d 882 (Ky. 1981),

cert. denied, 456 U.S. 975 (1982); Wilson v. Capita! City

Press, 315 So.2d 393 (La. Ct. App. 1975); Jaeron 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. 944 (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, 429 U.S. 1123

(1977); Seegmiller v. KSL, Ine., 626 P.2d 968 (Utah 1981):

Taskett v. King Broadcasting Co., 86 Wash.2d 439, 546

P.2d 81 (1976); Havalunch, Ine. 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 eases that do not discuss the issue are:

Browning v. Birmingham News, 348 So.2d 455 (Ala.

(continued)

Corp., 526 F. Supp. 546 (E.D. Va. 1981); Mills v.

Kingsport Times-News, 475 F. Supp. 1005 (W.D. Va.

1979). And the drafters of the Restatement responded

to Gertz by adopting a negligence standard for the

media defendant who defames a private person or a pub-

lie person in a matter unrelated to his public capacity.

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

generally R. Smolla, Let the Author Beware: The

Rejuvenation of the American Law of Libel, 132

U.Pa.L.Rev. 1 (1983).

fil. Subsidiary Issues

Because one of the present appeals in-

volves a non-media defendant, the question arises

(continued from previous page)

1977); Corbett v. Register Publishing Co., 33 Conn.

Supp. 4, 356 A.2d 472 (1975); 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. 891 (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).

-79-

whether the negligence standard is limited to media de-

fendants, in which case the non-media defendant would

remain subject to the rule of strict liability. Gertz in-

volved a media defendant and the Court's opinion did not

address the instant issue. We hold, however, as a matter

of state law that the negligence standard should be ap-

plicable to media and non-media defendants alike.

The logie of such a conclusion is compel-

ling. 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 profes-

sionals and capable of causing much greater damage be-

cause of wider distribution of the communication, 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 liabil-

ity resulting from his communication and will fail to

take similar precautions. See Restatement (Second) of

-80-

Torts § 580B, comment e (1977). Contra Denny v.

Mertz, 106 Wis.2d 636, 659-61, 318 N.W.2d 141, 152-53

(1982). Neither policy nor reason supports different

treatment of the respective types of defendants. See

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

Furthermore, in Fleming I, we applied the

constitutional privilege of New York Times, Butts, and

Gertz to a non-media defendant where recovery of puni-

tive damages was sought. We now take the next logical,

consistent step and apply the Gertz-authorized negli-

gence Standard to non-media defendants where recovery

of compensatory damages is sought.

Another subsidiary issue that arises from

establishment of a negligence standard for compensato-

ry damages is the current status of the common-law

qualified privileges in Virginia. Unlike some jurisdic-

tions, Virginia does not permit a qualified privilege to be

defeated upon a showing of mere negligence. We re-

quire proof of common-law malice, that is, behavior ac-

tuated by motives of personal spite, or ill-will, indepen-

dent of the occasion on which the communication was

-8l1-

te ee a i

I eee

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

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

dard than negligence, the qualified privileges survive in

Virginia. This means, of course, that the defendant may

Still avoid liability based on qualified privilege even

though the negligence standard is met by the plaintiff.

When a qualified privilege is established and not de-

feated by a plaintiff's evidence of common-law malice,

the negligence standard is subsumed in the higher stan-

dard and it is of no consequence that the plaintiff might

have met the lower standard of negligence. Jacron

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

The other subsidiary issue involves the

scope of appellate review in these cases. Relying on

Bose Corp. v. Consumers Union of the United States,

Inc., 104 S.Ct. 1949 (1984), the media defendants assert

that, in a case raising First Amendment issues, an appel-

late court has an obligation to make an independent ex-

amination of the entire record in order to insure that

the judgment of the trial court does not constitute a for-

bidden intrusion on the exercise of free expression. We

agree that an appellate court in Virginia must conduct

such independent examination of the whole record on

the issue of punitive damages or where New York Times

malice must be established, but not on the question of

compensatory damages when New York Times malice

need not be proven.

Bose primarily is concerned with the appli-

cation of Rule 52(a), Federal Rules of Civil Procedure,

which fixes a "clearly erroneous" standard for federal

appellate review of findings of fact. Nevertheless, the

Supreme Court in First Amendment cases arising in

state courts repeatedly has held that the independent

examination contended for is required on review. See,

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

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

quirement of independent appellate review reiterated in

New York Times v. Sullivan is a rule of federal constitu-

tional law." 104 S.Ct. at 1965. Consequently, because

we apply the federal constitutional rule of New York

Times to the punitive-damage issue in a State defama-

tion suit, we likewise apply the federal constitutional

-83-

ed

eRe RTA, Bar

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 "actu-

al malice" by clear and convincing proof. 104 S.Ct. at

1965. This does not mean that the reviewing court may

disregard the determinations made on credibility of wit-

nesses by the trier of fact or that the presumption of

correctness that attaches to factual findings is to be dis-

counted. Id. at 1959. The rule simply means that appel-

late 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.

In contrast, however, on the issue of com-

pensatory damages in libel cases when New York Times

malice need not be proven, we will continue to follow

-8 4-

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 independent examina-

tion is bottomed on the obligation of reviewing judges to

assure that governing federal constitutional law has

been applied properly. The negligence standard for

compensatory damages that we have adopted is not a

matter of governing federal constitutional law; rather,

within the parameters authorized by Gertz, we have

fixed the standard as a matter of state law. Accordingly

Bose, aS well as the federal decisions on which it is

based, is not controlling on this issue.

-85-

eee

VI. Fleming v. Moore

In January of 1977, appellee W. Bedford

Moore, III, 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 University of Virginia and in the

Albemarle County area. Fleming was a black real estate

Geveloper and Moore was a white University professor.

The dispute, and resulting publication entitled "Racism,"

arose from efforts by Fleming, and others, to develop

land im the vicinity of Moore's home situated in the

County.

Following a 1977 trial, the court below en-

tered judgment on a jury verdict awarding Moore

$10,000 compensatory damages and $100,000 punitive

damages. On appeal, we reversed the judgment and re-

manded the case for a new trial on all issues. The 1981

Fleming I decision has been summarized in section I(C)

of this Opinion.

-86-

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, 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 compen-

satory damages, sufficiency of the evidence to support

the punitive award, excessiveness of both awards, and

the correctness 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 associates 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 "Evergreen," was to

house lower and middle-income families of both races.

-87-

Moore, a resident of the Charlottesville area since 1947,

was an assistant professor in the Humanities Division ot

the University's School of Engineering and Applied Sci-

ence. Moore lived near the development site. His resi-

dence was named "Shack Mountain" and was described as

a Twentieth Century reproduction of an Eighteenth

Century Jeffersonian pavilion; it was a "small version"

of Monticello, not a "replica."

During a period of several years, defendant

Fleming sought unsuccessfully to obtain a special permit

from county authorities for use of the agriculturally

zoned land. Plaintiff Moore and others opposed the de-

velopment 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 plaintiff and others spoke in opposition to the sev-

eral plans that were submitted by the defendant. The

Planning Commission staff recommended that the first

Evergreen proposal be rejected mainly because the

-88-

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 like-

wise turned down by the County because of conservation

and environmental factors relating to the reservoir.

Eventually, the Board of Supervisors in early 1976 im-

posed a moratorium on construction within the reservoir

watershed until a study in progress dealing with pollu-

tion 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 con-

siderations in his opposition to defendant's development.

Nevertheless, as the land-use controversy

developed, 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

-89-

citizen groups opposing the development were

conspiring against him because he was black. In addi-

tion, 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 responsible for imposition of the condi-

tion requiring the buffer. Fleming thought Moore was

attempting to have the buffer placed on Fleming's prop-

erty and that Moore somehow would take advantage of a

racially restrictive covenant in prior deeds to the prop-

erty.

Consequently, defendant drafted the publi-

cation in question. He arranged for it to appear as a

paid advertisement in two January 1976 issues of The

Cavalier Daily, a campus newspaper read by approxi-

mately 15,000 persons. The advertisement is copied ver-

batim in Fleming I, 221 Va. at 887-88 n.3, 275 S.E.2d at

634-35 n.3. It was headlined "RACISM" and "Signed:

James N. Fleming.”

-90-

After stating that the author had endeav-

ored 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 ex-

pense 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 fact that here

in Mr. Jefferson's country 200

years after his vision of situ-

ating his beloved Monticello

upon the hilltop overlooking

the developing community we

have a replica of Monticello

upon the hill overlooking my

property which is occupied

by a man who wants to de-

prive 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”

-9l-

between the “haves and the have-nots” and stated that

"we have ereated too much financial security for the

tenured segment of the economic community whose

greed is repeatedly shown by their expression of ‘I'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 oppressed 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 neighbe; hood.

"Pollution of the res-

ervoir is being used as the

current excuse to foster no-

growth. The solution, of

course, is to remove the

guaranteed incomes of these

greedy people and put them

in the position of seeing the

world through the eyes of one

seeking the opportunity to

improve his or her living

standard. Only then would

-92-

they admit that the pollution

excuse is a sham."

The advertisement concluded: "I will develop Ever-

green, 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 intrusion on the exercise of free

expression. In addition, Fleming argues that the adver-

tisement 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 compensa-

tory damages. We have addressed these issues already

and no further discussion is necessary to explain our re-

jection of the contentions. The trial court was correct

in applying a negligence standard in this case, and in

using the principle in a suit against a non-media defen-

dant.

-93-

We will consider next the question whether

the award of compensatory damages is excessive. The

defendant argues that the award shocks the conscience

in that it bears no relationship to the loss actually sus-

tained by Moore.

Moore read the advertisement on both days

it was published. In describing the effect of the publica-

tion, Moore testified that race had no bearing on his op-

position 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 histor-

ic 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 publication

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

cause he had been taught to be "color blind" and "consid-

erate" in his dealings with all other persons.

-94-

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 malicious attack on me, my character.

This was done in front of my colleagues at the Universi-

ty, 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 in-

deed. 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 Uni-

versity. The school was trying to attract minority stu-

dents and faculty. Tension had developed on campus be-

cause of the University President's membership in an

exclusive private club, Farmington, and there were de-

mands 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

-95-

relationship with his students of both races. Dr. Edgar

‘F. Shannon, Jr., President of the University from 1959

to 1974, testified that the perceived racial attitudes of a

professor are important to his relations with his students

and materially affect 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 University as well as students made re-

peated inquiries about Moore and whether the state-

ments 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 humili-

ation had not lessened with the passage of time: "It still

Stings. I still feel my honor has been questioned, that's

not something you shrug off easily."

-96-

Ordinarily, damage awards fixed by a jury

following 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.2d 872, 875 (1961). But, "[a] healthy

administration of justice requires that, in a proper case,

the courts must take action to correct what plainly ap-

pears to be an unfair verdict. This authority is an an-

cient and accepted part of the common law." Id. at 146,

122 S.E.2d at 875. When there is a claim that the ver-

dict 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 suf-

fered damage to his reputation, embarrassment, humilia-

tion, and mental suffering from this defamatory publica-

tion made negligently. Nevertheless, the verdict of

-97-

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

as to be excessive as a matter of law. As the defendant

points out, Moore experienced no physical manifestation

of any emotional distress. Moreoever, he sought no

medical 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, the evidence shows that

Moore's acquaintances supported him; one indicated

that: "As far as I personally am concerned, . . . he lost

nothing." Actually, the evidence showed that Moore

continues to be held in high esteem among his communi-

ty 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 evidence. 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 submit to a new trial

under the provisions of Code § 8.01-383.1.

-9R-

Section 6 of Article VI of the Virginia Con-

Stitution, dealing with the power of this Court upon re-

versal, modification, 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 unliquidated damages shall not be

increased or diminished." We have interpreted this sec-

tion: "The plain purpose of the provision is to leave to

the factfinding tribunal--the jury or the trial court sit-

ting as a jury--the function of fixing the amount of un-

liquidated 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

portion of an award for unliquidated damages or elise

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 exercised 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

-99-

new trial," is not affected or diminished "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 consti-

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

Accordingly, we will reverse the compen-

satory award and remand the case with direction to the

trial court to require the plaintiff to remit a substantial

part of his recovery or else submit to a new trial upon

the issue of damages only.

Next, the defendant contends there was in-

sufficient evidence of actual malice to support the puni-

tive award. We do not agree.

We have made an independent examination

of the record on this issue to be certain that the judg-

ment for punitive damages does not constitute a forbid-

den 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,

-100-

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 instruction, "so

recklessly as to amount to a willful disregard for the

>. rs

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 disre-

gard for the truth.

On this point, Fleming argues that looking

through his eyes "at his world as it existed in January

1976 . . . the only possible conclusion is that [he] was

not motivated by actual malice but by genuine frustra-

tion." But evaluation of this element of proof must be

from an objective standpoint, not merely from a subjec-

tive perspective.

Fleming abandoned all judgment and reason

in composing and publishing the advertisement. For

-101-

example, he accused Moore of racial prejudice without

possessing any objective basis for the charge. Naming

Moore in the publication, Fleming demeaned him as

being 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 poliution

ground was a "sham" to conceal his supposed real pur-

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

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

act of publishing the advertisement in the student news-

paper on the campus where Moore taught supports the

conclusion that defendant's motive was to intimidate

Moore in order to eliminate the voice of a leading

opponent to Fleming's development.

-192-

Next, defendant contends the amount of

the punitive award shocks the conscience in that it

bears no relationship to the intended purpose of punitive

damages, which is to punish the defendant for his con-

duct and to serve as a warning 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 preju-

dice.

The independent examination we make on

the punitive-damage issue is not limited to proof of pu-

nitive liability. The First Amendment implications

flowing from the amount of such an award require the

reviewing court to consider the effect of approval of

such an award on self-censorship in derogation of the

right of free speech. Moreover, a jury verdict for puni-

tive damages cannot be allowed to work an injustice and

result in oppression. Siubbs v. Cowden, 179 Va. 190,

199, 18 S.E.2d 275, 280 (1942). Where a punitive award

is substantially in excess of what ordinarily might be

-103-

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 suffi-

cient 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 for-

bidden intrusion on the exercise of free expression and

that it is substantially 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 excessive harangue is not merely punitive, it is

destructive, even though Fleming estimated his assets at

close to one million dollars. While the elements of com-

pensatory damages differ from the requirements to es-

tablish punitive damages, many factors apply to both on

appeal. For example, the absence of physical manifes-

tation of Moore's emotiona! distress must be considered.

The fact of no substantial reduction in Moore's standing

with his associates must not be overlooked. Indeed,

Moore was not charged with commission of a crime.

-104-

The amount of punitive damages awarded should bear

some reasonable relationship to the actual damages sus-

tained and to the measure of punishment required; oth-

erwise, the award on its face indicates prejudice or par-

tiality. Id. at 201, 18 S.E.2d at 280. This is such an

award and it cannot stand.

Consistent with our disposition of the com-

pensatory award, and on the same authority, we will re-

verse the punitive 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 inter-

est was not preserved properly in the trial court and be-

cause the interest 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 affirmed, in part, reversed, and remanded for further

proceedings c. sistent with this opinion.

~105-

Record No. 830758 - Affirmed.

Record No. 830526 - Affirmed.

Record No. 830651 - Affirmed, in part,

reversed, in part,

and final judgment.

Record No. 831446 - Affirmed, in part,

reversed, in part,

and remanded.

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

Harrison, Retired Justice, concurring in part and dis-

senting in part.

-106-

THE GAZETTE, INC.

Vv. Record No. 830758

JAMES WILLIAM HARRIS, et al.

CHARLOTTESVILLE NEWSPAPERS, INC.

v. Record No. 830526

DEBRA C. MATTHEWS

PORT PACKET CORPORATION

Vv. Record No. 830651

E. GREY LEWIS, et al.

JAMES N. FLEMING

v. Record No. 831446

W. BEFORD MOORE, IU

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

I do not approve the compensatory-damage

standard of liability the majority imposes upon the

media defendants.

The free press clause of the First Amend-

ment was designed, not so much as a license for publish-

ers, 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

-107-

defamatory publication causes these competing interests

to collide, courts must weigh constitutional values and

resolve the conflict by defining the standard of liability.

Except for cases involving qualified privilege (a concept

left undefined), the majority has adopted a simple-

negligence standard. I fear that standard creates an im-

politic 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 sub-

Stantial danger to the reputation of a private person ap-

parent, that person may recover compensatory damages

against a media defendant if he proves by a

-108-

preponderance of the evidence that the defendant's neg-

ligence in the investigation and verification of the con-

tent of the publication was so gross as to shock the con-

science of fair-minded men and so heedless of the truth

as to evinee a flagrant indifference to his rights. See

Chapadeau v. Utica Observer-Dispatch, Ine., 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,

exercising the discretion granted in Gertz v. Robert

Welch, Inc., 418 U.S. 323 (1974), have adopted the

simple-negligence standard. We ought not fear to join

the minority. This Commonwealth 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 sim-

ple negligence weakens Virginia's historical commitment

to freedom of the press and encumbers the right of the

people to learn what they need to know to govern them-

selves wisely.

-109-

In keeping with the standard I have de-

fined, 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 sev-

eral verdicts because each was based upon an instruction

defining the simple-negligence standard. For the same

reason, 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.

-110-

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

Vv. Record No. 830651

E. GREY LEWIS, et al.

Harrison, Retired Justice, concurring in part and

dissenting in part.

The opinion of the majority finds prece-

dential 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 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 negligence. Ordinary

care is that care which is commensurate with the occa-

sion. It is not absolute or intrinsic. It is always relative

to some circumstances of time, place, manner, or person

and becomes a question of fact to be decided by a jury.

“$i5°

Juries are randomly selected, and the prin-

cipal 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 sus-

tain a trial court when it does take such action.

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 diffi-

culty that courts and juries had in making this distine-

tion in motor vehicle accident cases caused the General

Assembly to abolish the gross negligence 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 stan-

dard which permits the recovery of compensatory

-112-

|

damages for a defamatory statement only when such

statement is made with knowledge that 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 stan-

dard will inevitably have a chilling effect on free speech

and the free press and will erode the safeguards pro-

tected by the Constitutions of the United States and Vir-

ginia.

The majority opinion does limit the appli-

cation of the negligent standard by requiring a trial

judge to find as a matter of law that the defamatory

statement "makes substantial danger to reputation ap-

parent." Although I approve the limitation, I fear that it

will prove in practice to be one of form rather than sub-

stance. What is defamatory and when it is harmful are

questions of fact. Judges will be just as hesitant 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.

“ie

Because I am of opinion that the defen-

dants in The Gazette, Ince., 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 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.

-114-

SUPREME COURT OF VIRGINIA

JAMES N. FLEMING,

Appellant,

~against-

W. BEDFORD MOORE, II,

Appeliee.

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, III, Appellee.

Upon an appeal from a judgment

rendered by the Circuit Court of

Albemarle County on the 3rd day of

June, 1983.

-115-

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 affirmed, 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 com-

pensatory or punitive award, even if such interest on a

punitive award is allowable in a proper case, merely in-

creases the excessiveness of the awards by the amount

of the interest.

Accordingly, without passing on the legali-

ty of an award of prejudgment interest on punitive dam-

ages, the Court has determined that the whole interest

factor is grossly excessive and shall not be used by the

trial court in computing the amount of the remittitur.

“1i¢-

Thus the plaintiff shall remit the entire

amount of the prejudgment interest, a substantial por-

tion of the punitive award of $250,000, and a substantial

portion of the compensatory 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 cir-

cuit court.

A Copy,

Teste: /s/David B. Beach

Clerk

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

at

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Il,

Plaintiff,

v.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

April 16, 1985

Transcript pages 41-42

by the evidence produced at trial. Any remittitur that is

paid to the judgments already rendered by the jury are

paid to an erroneous jury verdict that as a matter of law

as held by the Virginia Supreme Court was grossly exces-

sive and it's therefore Mr. Fleming's position that the

damages awarded in this case must first be based on the

evidence actually produced at trial and then tested

against the guidelines announced by the Virginia Su-

preme Court. With respect to that evidence I admit as

Mr. Albro has told the Court that the advertisement

-118-

produced reaction but that is not damage. Reaction

among the colleagues, reaction among the students, re-

action in the community, but that is not damage. I ask

the Court to look at the damage evidence produced and

that damage just does not exist in the evidence produced

to the Court, and with respect to the quantification of

the damages, I don't pretend to tell the Court that any

method I have offered this Court is exact but there is no

exact method of quantifying the damage in this case. I

have offered several alternatives to the Court which I

hope will give the Court some guidance in awarding

damages with the bottom line being that compensatory

and punitive liability awards will stand. Mr. Moore's

right has been vindicated but there wus no evidence of

actual damage and therefore an award of nominal dam-

ages would be appropriate.

THE COURT: All right, gentlemen, the

Court believes that the awards in principal in this case

have been approved by the Supreme Court. We also be-

lieve that if the Supreme Court had felt that nominal

damages were in order, the Supreme Court wculd have

-119-

said so or would have entered nominal damages on its

own motion. This Court has previously sustained the

jury verdict in this case. The primary question before us

is in the light of the evidence and in the light of the

mandate of the Supreme Court what is an appropriate

award and what constitutes a substantial reduction in

accord with the evidence in the case. The Court be-

lieves that a reduction of one third in each award and

thus in the total award is a substantial reduction and is

appropriate upon an overview of the evidence in this

case. We therefore submit that to plaintiff. We further

submit that without any award of prejudgment interest.

MR. ALBRO: I'm sorry, I didn't hear you,

Your Honor.

THE COURT: Without any award of

prejudgment interest.

MR. ALBRO: Your Honor, I believe the op-

tion under the statute at this juncture is that the plain-

tiff either reject the Court's judgment and have a new

trial on damages, accept it or accept it under protest

with leave to appeal and on the record ! can state on

-120-

behalf of Mr. Moore that he accepts the Court's remitti-

tur with no protest.

THE COURT: All right, any other matter

that counsel needs to take up with the Court?

MR. EDWARDS: Am I correct, Your

Honor, that the final order will then be entered by this

Court in written form embodying the award of today?

-121-

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Il,

Plaintiff,

Vv.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

May 13, 1985

VIRGINIA:

IN THE CIRCUIT COURT FOR THE

COUNTY OF ALBEMARLE

W. BEDFORD MOORE, Ill,

Plaintiff,

v. LAW NO. 976L

JAMES N. FLEMING,

ee ee ee ee ee ee ee eet ee”

Defendant.

FINAL JUDGMENT ORDER

On April 16, 1985, came the parties, by

-122-

counsel, pursuant to the mandate of the Supreme Court

of Virginia in Record Number 831446 dated February 1,

1985, in which this case was remanded to the Circuit

Court of Albemarle County for further proceedings con-

sistent with the written opinion of the Supreme Court.

In that opinion, the Supreme Court of Virginia affirmed

the compensatory and punitive liability of James N.

Fleming ("Fleming") but reversed both damage awards as

excessive. The Supreme Court of Virginia directed this

Court to require W. Bedford Moore, III ("Moore") to remit

a “substantial part" of his compensatory award and a

"substantial part” of his punitive award, or else submit

to a new trial on the issue of damages only.

For the reasons stated by this Court from

the bench at the conclusion of the argument of counsel,

the transcript of which hearing is hereby made a part of

the record, it is ADJUDGED, ORDERED and DECREED

that Moore shall submit to a new trial on the issue of

damages only or shall remit one-third of the compensa-

tory damage award of $100,000 and one-third of the pu-

nitive damage award of $250,000, resulting in a

-123-

compensatory damage award of $66,666.67 and a puni-

tive damage award of $166,666.67. Plaintiff's request

for the award of prejudgment interest on the resulting

compensatory damage award is denied.

The Court having ordered remittitur of

damages as noted herein, Moore, by counsel, pursuant to

Virginia Code § 8.01-383.1, stated in open court that

Moore accepts the remittitur and judgment of the court

for the reduced sums, without protest or exception.

Therefore,

It is ADJUDGED, ORDERED and DE-

CREED, that the plaintiff, W. Bedford Moore, III, have

judgment against the defendant, James N. Fleming, in

accordance with the aforesaid judgment of the Court in

the sum of TWO HUNDRED THIRTY THREE THOUSAND

THREE HUNDRED THIRTY THREE AND 34/100 DOL-

LARS ($233,333.34). It is further ADJUDGED, OR-

DERED and DECREED that pursuant to Rule 5:9 of the

Supreme Court of Virginia the transcript of the hearing

of April 16, 1985 ore tenus be, and the same hereby is,

made a part of the record in this case.

-124-

Fleming having indicated his intention to

appeal this Final Judgment Order, and having moved the

Court to suspend execution of this judgment, the Court

ORDERS that execution of this judgment is suspended so

long aS Fleming timely prosecutes his appeals and there-

after so long as the matter is under consideration by the

Supreme Court of Virginia; provided, however, that

Fleming or someone for him shall file in the office of

the Clerk of this Court an appeal bond approved by the

Judge of this Court within thirty (30) days of the entry

of this Order in the penalty of TWO HUNDRED THIRTY

THREE THOUSAND DOLLARS ($233,000.00), reciting

this judgment and Fleming's intention to appeal this

Final Judgment Order. This Court further ORDERS that

the two appeal bonds previously filed in this matter shall

be released 30 days after the entry of this Order and the

Clerk of this Court shall return them to counsel for

Fleming.

-125-

ENTER: /s/ F. W. Harkrader,

Judge

DATE: /s/ 5/13/85

I ask for this:

/s/ Thomas E. Albro

Thomas E. Albro

Bradley B. Cavedo

Smith, Taggart, Gibson & Albro

105-109 E. High Street

Charlottesville, Virginia 22902

Counsel for plaintiff

Seen and objection noted:

/s/ W. Jeffery Edwards

D. Alan Rudlin

W. Jeffery Edwards

Hunton & Williams

P. O. Box 1535

Richmond, Virginia 23212

Gerald G. Poindexter

P. O. Box 766

Surry, Virginia 23883

Counsel for defendant

A Copy Teste:

SHELBY J. MARSHALL CLERK

By:/s/ Karen P. Shifflett, Dep. Clerk

-126-

SUPREME COURT OF VIRGINIA

JAMES N. FLEMING,

Appellant,

~against-

W. BEDFORD MOORE, II,

Appellee.

Record No. 850622

January 24, 1986

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the

24th day of January, 1986.

James N. Fleming, Appellant,

against Record No. 850622

Circuit Court No. 976-L

W. Bedford Moore, I, Appellee.

From the Circuit Court of Albemarle County

Upon review of the record in this case and

at i te

consideration of the argument submitted in support of

and in opposition to the granting of an appeal, the Court

is of opinion there is no reversible error in the the judg-

ment complained of. Accordingly, the Court refused the

petition for appeal.

A Copy,

Teste:

David B. Beach, Clerk

By: /s/ Deirale Roman

Deputy Clerk

-128-

SUPREME COURT OF VIRGINIA

JAMES N. FLEMING,

Appellant,

~against-

W. BEDFORD MOORE, Il,

Appellee.

Record No. 850622

March 7, 1986

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the

7th day of March, 1986.

James N. Fleming, Appellant,

against Record No. 850622

Circuit Court No. 976-L

W. Bedford Moore, I, Appellee.

Upon a Petition for Rehearing

On consideration of the petition of the

-129-

appellant to set aside the judgment rendered herein on

the 24th day of January, 1986, and grant a rehearing

thereof, the prayer of the said petition is denied.

Justice Thomas did not participate in the

decision of this case.

A Copy,

Teste:

/s/ David B. Beach

Clerk

-130-

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, I,

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 nct 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

-iai~

deliberate misconstruction @ the truth or an utter wan-

ton disregard for the truth @f anything that Mr. Fleming

said and that throws aside 4l) the questions of privilege

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 -

punitive damages are simply not in «is case.

THE COURT: Did the Supreme Court ad-

dress that in anyway in its opinion?

MR. PHEMISTER: Yes, they did, Your

Honor. On page ten of the opinion they talked about the

punitive damage 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 nec-

essary 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. against Burke.

~132-

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 in-

struction on punitive damages must be structured 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 that they

have not previously applied it to nonmedia defendants

but they're now extending the rule to nonmedia defen-

dants 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

~133-

the other part of the motion on the punitive damage

claim really ties into the motion to dismiss. You'll no-

tice 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 condemned, when they say was condemned they

mean by Gertz and here they are quoting the Gertz

Opinion, inviting juries to punish unpopular opinion rath-

er 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 contended 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 been called

a racist and if we take that for the purposes of our argu-

ment 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

-134-

ee

punitive damages 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 dif-

fer from what Mr. Moore thinks is a racist. He may take

deep umbrage at a comment that I consider not de-

meaning in any shape or form and because it is an

unquantifiable subjective consideration it is not a fact,

it cannot be false and we contend cannot be the subject

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 Su-

preme 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 and didn’t and you are now saying

this court should do it behind the Supreme Court without

trying the case aren't you?

-135-

I —

MR. PHEMISTER: No Your Honor, |

wouldn't characterize my remarks that way. I think in

fact the Supreme Court shows an error or ground on

which to reverse it, perhaps looking for some clarifica-

tion 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 Su-

preme Court if it had chosen to could have, for whatev-

er reasons it might have found appropriate, dismissed

and entered final judgment. In fact, the dissenting opin-

ion 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 differ-

ent position since the case was sent back for retrial and

not having such information I therefore overrule the

-136-

motion for dismissal and also with respect the issue of

punitive damages. I don't see how the case can suddenly

take a turn different 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 based on the evi-

dence and until the evidence is actually presented to me

and the court evaluates the evidence it would be inap-

propriate 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 es-

caped us to the point that he introduced it. If you call

somebody a thief you can prove it, you can go out

possibly and get a record and show that what you Said is

the truth. If you say somebody has a veneral disease it's

possible that you could go back and get records and

-137-

—————

prove that; but if Mr. Fleming or I should call someone a

racist there is no way that what I said could be dis-

proved and there is no factual way that I could really

prove that to the satisfaction of everybody so it be-

comes not a fact but a highly subjective value judgment.

For example, there was an article, an editorial, in the

Progress Index under the broad heading Racism in the

Reservoir and it took to task Mr. Fleming and Saad El

Amin who was known at that time as JeRoyd Greene for

introducing, even daring to introduce the thought that

someone in this area was discriminating against Mr.

Fleming because he was black and it concluded by saying

that perhaps the persons who make this accusation are

guilty of racism or whatever. Now, I can't imagine that

that kind of editorial would give rise, or would have

given rise to a cause of action. Just like I could not im-

agine that that article that Mr. Fleming had put in the

newspaper would have caused us the consternation that

it has; but whether Mr. Fleming and Mr. Saad El Amin

were indeed were racists was simply a perception of

that editorial writer down here at the newspaper and

-138-

whether Mr. Moore is a racist, we say we never called

him that, but if he insists that we have called him that

so what, it is at Mr. Fleming's perception and Mr.

Fleming could probably see all the evidence in the world

and not be detered by it; but it cannot be proven or dis-

proven in any objective quantification that a jury or

tryor of fact can say this is it, he is not a racist, he isa

racist, give him some money, don't give him some money

and that is the reason that we believe that this lawsuit

has simply run out of steam and it should not be allowed

to linger - it has been around now for seven - six years

and we are no closer to a resolution of this thing than

we were six years ago and there has been the interven-

tion of a case recently coming out of the boycotts of

Mississippi, NAACP versus Claiborne which adds greater

value to the value coniing to our right of free speech

and exchange of ideas and we just believe firmly that

Mr. Fleming had a First Amendment Right to say what

was Said and that a court, without putting us to a jury,

should put an end to this lawsuit. If Claiborne is the

case that does it then Claiborne is indeed the case and

-139-

SS a

we believe that Your Honor should, despite what the Su-

preme Court may have said, take up the implications of

the most recent decision in this area by the United

States Supreme Court and rid us of the uncertainties of

this lawsuit.

THE COURT: Well, are you saying that

that was not presented to the Supreme Court, was not

taken as an exception or one of the basis of the appeal?

The term itself was one that could not lend itself to an

action. What does the dissent say?

MR. POINDEXTER: Dissent is what we

Say.

THE COURT: Yes. Why should this court

follow dissent? You are asking this court to reverse the

Supreme Court and file a dissent. Sometimes we are

often tempted but it's not done. It's not the law. Now, I

had this question addressed in the Palumbo Case and I

did considerable research, I might not have written a

very long opinion but I recall the great deal of attention

that was given to this question of ‘opinion as opposed to

fact. Mr. Albro, was there a written opinion from this

court in that case? On the preliminary motion?

-140-

MR. ALBRO: Yes Sir.

THE COURT: I may have to retreive it

and look at it again but a lot of attention was given this

very point that Mr. Phemister and Mr. Poindexter now

raise and that is it was not a false allegation of fact but

rather one of opinion, a question of mixed fact of opin-

ion and I commented in my ruling on that very aspect of

that Palumbo case, it didn't get to trial, it was settled

wasn't it?

MR. ALBRO: Yes, it was settled.

THE COURT: That was a very strong point

made by the attorneys for the, what was it, television

Station?

MR. ALBRO: Channel Six.

THE COURT: I may want to look at that

but I have made my ruling and I certainly am always

open to taking the second look which I will do and I note

your position as to the difference between fact and

opinion; but the problem that I have with it is that again

we come back to this question of characterization of the

terms that the Supreme Court had an ample opportunity

-141-

Ee

to deal with. Let's look at Justice Harrison's Dissent. |

think we dealt with a number of cases that were not in

this Commonwealth when we dealt with this question of

fact and opinion; and cases from all over the country

were analyzed in that context and I'll review that fur-

ther and let the judge who may try the case have the

benefit of that research and the memoranda on each

side. It is never put to rest but I think anytime a judge

enters final judgment, or what amounts to a determina-

tion of the merits of the case until the evidence is be-

fore the court, has to be based entirely on the pleadings

and the answers and responses to interrogatories and I

can't see how again that would be a new ingredient that

would allow this court to dismiss a case at this stage

which has been sent back for retrial.

. MR. POINDEXTER: Your Honor, I asked

Mr. Moore this morning to name some racists and he

earlier named Andrew Young and he said Senator Bilbo

and the late George Lincoln Rockwell. But I would think

that those persons were not necessarily racists in the

eyes Of all persons who preceded them and that just

-~142-

shows some of the difficulty that is associated with

trying to quantify and talk in objective terms about a

racist. Mr. Albro could be a racist to me but he may not

be to Mr. Phemister and we would have our different

points as to why Mr. Albro is a racist but we would

never resolve that and it's unfair to try to put such a

vague question to a tryor of fact and that of course

gives us a problem in damages, even if we agree that

this is an article which has harmed this gentleman. An-

other one was published in the Tribune a week before

that and he was harmed by that, he said about equally;

and he has filed a million dollar lawsuit based upon that.

He filed a million dollar lawsuit over here, they are right

across the street. Now, how does he distinguish between

what harm he felt, what injury, what emotional stress,

what suffering he has experienced from the Cavalier

Daily article which was published twice as opposed to

the Tribune article? He told us this morning that the

Tribune article had an impact, probably a greater im-

pact in the black community, among his black friends;

but you can't distinguish for the jury in a certain sense

~143-

what harm the Cavalier Daily article did as opposed to

the Tribune article and it has been an old teaching that

when damages and injuries are so vague they cannot be

ascertained you have no case.

THE COURT: Mr. Poindexter, I have made

my ruling and I'll merely note this for the benefit of your

objection and the record which will have to be pre-

served, if it's appropriate, and that is, the evidence

presented had it not been for objective testimony may

well have caused the court to sustain a motion to strike,

had it been entirely subjective by the plaintiff your

point would be well made but as I recall the evidence

and certainly the plaintiff has a right to bolster his case

with evidence there was objective testimony to the ef-

fect that this term used in the context of the University

of Virginia Campus at the time when used was more

than subjective damage. People who were in positions

to testify I suppose almost as an expert and I recall spe-

cifically the former President of the University of Vir-

ginia in dealing with the position of a faculty member

being termed a racist on his campus. Now, that was the

-144-

evidence. I would certainly agree with you that in the

vague sense and out of the context of the surroundings

that these words were uttered in you may have an en-

tirely different result just as the old classic case, you

can yell fire on the street, that 's one thing; if you yell

fire in a crowded theater it's another and that's exactly

what this case according to the evidence went to the

jury on and I have no qualms about your position that

subjective reaction is not necessarily compensible. It

has to be based in objective criteria and in this case if

the plaintiff doesn't provide it then he is always subject

to a motion to strike, as was the other case and I think I

refused to sustain a Motion to Strike based upon the fact

that it was not his own reaction to it, it was the objec-

tive evaluation of his position as a faculty member at

the time the utterance was made in the context of the

student body and this being a student newspaper. I think

I made the comment had it been published in some other

publication which was not normally circulated on the

campus, not primarily designed to be circulated on the

campus, you certainly would have had a different

-145-

ene

situation. I certainly made a distinction between a nor-

mal publication and that which in effect searched out

the plaintiff within his own area of work. That was the

basis upon which the evidence came in. I don't

~146-

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Il,

Plaintiff,

Vv.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

October 21-22, 1982

Transcript pages 21-23

THE COURT: All right, you may pass the

list to counsel for striking.

(List submitted to counsel for strikes)

THE COURT: Ladies and gentlemen of the

jury, the court says to you that the fact that you may be

struck from the panel is in no way a reflection on your

ability as a juror. Counsel are required to make a pre-

requisite number of strikes in each case.

~147-

THE CLERK: The following six people

please stand aside as I call your names and have a seat in

the courtroom: Shirley Chapman, George Cleveland,

Purnell Eurbanks, Lester Greenwood, David Harrison,

William J. Hicks.

THE COURT: All right, if you will identify

the seven remaining.

THE CLERK: Answer as I call your name:

Donald Baker, Dorothy Barkley, Fannie Clark, Cole

Diggs, James Glass, Mimi Hirsch and James Howe.

THE COURT: All right, any objection to

the jury panel as its presently constituted from the

plaintiff?

MR. ALBRO: No objections, Your Honor.

THE COURT: From the defense?

MR. POINDEXTER: May we take up a

matter, Your Honor, out of the presence of the jury

panel?

THE COURT: All right, I will ask the jury

to step into the jury room please.

~148-

——————————

(Jury ret-ired to the jury room at this time)

THE CO'URT: I will ask the members of

the jury who have bee»n excluded from the panel to step

into the hall please. Do not leave, just step into the hall

briefly, those of you who have been excluded from the

panel.

(Rest of the jurors retired from the court-

room)

MR. CARTER: If the court, please, I want

the record of this triial to show that the three blacks

that were on this jury’, one of them disqualified himself

and the other two weire put off by the defendant [sic]

and I want the record! to show that and I want it to be

very clear that the race issue in this case...he is entitled

to have black people oin that jury just like everybody else

has and I resent the ffact that they made a point, the

first two were blacks;, to put them off the jury and I

want the record to smow that's what happened and we

except to it.

~149-

THE COURT: The record will so reflect.

All right, you may bring in the jury.

MR. CARTER: I would move to quash the

panel.

THE COURT: Motion overruled.

MR. CARTER: Thank you.

(Jury panel brought back into the court-

room at this time)

THE CLERK: Remain standing, face me

and raise your right hands. You shall well and truly try

the issue joined between W. Bedford Moore, Ill, the

plaintiff, and James N. Fleming, the defendant and a

true verdict give, according to the evidence, so help you

God?

(All jurors indicated in the affirmative)

THE COURT: All right, please be seated.

All right, you may have those jurors in the hall to come

in please.

~150-

MR. POINDEXTER: Your Honor, excuse

me, please, Mr. Albro has put up a board, I guess which

would be a visual aid and I would ask that it not be

placed before the jury at this point.

MR. ALBRO: It's an aid to the opening

Statement, I can take it down, Your Honor, if Mr.

Poindexter feels there is something inaccurate in it.

THE COURT: Well, perhaps you should

refer to your notes without the additional display at this

time.

MR. ALBRO: All right.

(The remaining jurors were brought back

into the...)

-151-

CIRCUIT COURT OF ALBEMARLE COUNTY, VIRGINIA

W. BEDFORD MOORE, Il,

Plaintiff,

v.

JAMES N. FLEMING,

Defendant.

Law No. 976-L

October 21-22, 1982

Transcript pages 373-87,

514-23

matter up now then.

MR. ALBRO: All right, sir, I think that is

actually something that was going to be reserved for a

motion to strike if that's what you want to take up at

this time.

THE COURT: All right, if there's nothing

else then other than the motion to strike and with the

reservation of putting on evidence as to the wealth of

the defendant in the event the plaintiff prevails in his

-152-

contention the Court is prepared to release the jury and

hear the motion to strike if there is one. :

MR. POINDEXTER: Yes sir.

THE COURT: All right, bring the jury

back in. All right, ladies and gentlemen of the jury, you

need not get settled back down into your seats, we're

going to release you now with the request that you be

back in the morning at 10:00 to resume this case. The

attorneys and the court will proceed to take care of

some matters which you are not needed for. So you are

now excused until tomorrow morning at 10:00. Let me

remind you, however, not to discuss this case or allow

anyone to discuss the case with you during the time that

you are recessed. You may withdraw. All right, the jury

has withdrawn.

MR. POINDEXTER: May it please the

court, Your Honor, first we would respectfully- submit

that given all the ... all the evidence heard in this case

today, no case framed against the context of, framed

against the decision of the court in this case previously.

No case has been made out to go to the jury, because the

-153-

case includes Mr. Fleming's own recital which would

rebut any suggestion of wrongdoing on his part which

would give rise to the cause of action. It would seem

that the plaintiff has had to show to this point at least

by a preponderance of the evidence of defamation, a

libel. Other than conclusionary allegations on the part

of the plaintiff, first of all missing from that is the com-

ponent of damages. Now, Mr. Moore has testified as

have his witnesses that there was no damage. That

would have to be a necessary component of his case.

There is not enough in simply saying that I was dis-

tressed, simply saying that I was greatly embarrassed,

that is not enough under the measure or the test provid-

ed in Fleming v. Moore to allow a jury at this point, if

we did nothing else to speculate on the worth of his

case. The other part of it is that we would have to in-

sert again our right to say things, though they might

have fallen unpleasant, though they might have given

rise to anger on the part of Mr. Moore. Mr. Fleming has

a constitutionally protected right given all those cir-

cumstances that we now know comprised the conflict

-154-

between these two men to say what he believed to be

true as it concerned him at that time. If Your Honor

would have had an opportunity to research some author-

ity, I doubt whether you would have found any case with

an unsettled judgment wherein the allegation was that

someone was called a racist or someone suggested that

that person was inflicted with race as a standard for

libel. We have found no such authority. Perhaps Mr.

Albro can suggest something to the court but you have

to view the assertion by Mr. Fleming that the claim of

race is within the context of what happened to him and

how Mr. Moore was involved directly or indirectly in

that occurrence. And the case has to be weighed in that

light and then insert in that measurement this first

amendment protection. The first amendment protection

runs whether or not he is a public figure, but if he is a

public figure as we submit that he must be found to be at

this point, the burden becomes one of showing by clear

and convincing evidence that Mr. Fleming purposely lied

or was so reckless in what he said about the man until it

was tantamount to a lie. And if you measure, if you take

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that test and measure it against what is the evidence in

this case you cannot, you cannot come to such a conclu-

sion given the, certainly given the higher test, not even

given the minimal preponderance test because what he

said must be measured in a subjective rather than objec-

tive sense. If he believed what he said was true that's

sufficient. Whether it was true or not, he made a mis-

take, he’s not responsible for it. There must be some

culpability. He's not punished in a libel case for negli-

gence, he is punished for a malicious state of mind. And

there's simply nothing in here to that effect. Here's a

man who saw his dreams for his subdivision out there

abolished in effect by what he perceived as the racist

conduct of Albemarle County officials who were encour-

aged and abetted by citizenry all of whom suddenly rose

up when he as a black person tried to initiate a develop-

ment in an area where he had seen white developers de-

velop their property, sell their property, encroach upon

the reservoir and all at once he is swamped by these

claims of pollution, he is swamped by a house suddenly

being designated a historic landmark that's only forty

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some years old despite the fact that I'm sure it is a sig-

nificant piece of architecture. He is swamped by all

sorts of concerns that have never before been expressed

in this community. It was not unreasonable under those

circumstances for him to have lashed out in the fashion

that he did in the ad which was published in The

Cavalier Daily on January 15th and 16th, 1976 and in

order to go forward at this juncture, Your Honor, it

would seem that you would have to find that there is

some room for him to have told, intentionally told a fal-

sity and that simply is not evidence in this case. Given

the fact that he's testified that, believed it then, be-

lieves it today. And we submit that at this point the

case should not be submitted to a jury on any grounds

and, of course, that would mean that we would have to

have not to respond to it beyond the response that has

been elicited through the examination of these witness-

es. There is no burden upon us.

THE COURT: Allright, Mr. Albro.

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MR. ALBRO: Thatix you, Your Honor.

Your Honor, I think perhaps the way to approach this

issue is to consider the law and what we're going to have

to ultimately instruct the jury. I state for the record

only because I think it should be stated not because Your

Honor doesn't know, obviously at this state all of the ev-

idence that was admitted must be viewed in the light

most favorable to the plaintiff. And all proper infer-

ences that could be derived therefrom must similarly be

so viewed and having said that the issue that confronts

us now is have we made such claim as to create the jury

question. Have we put on such evidence that is so as to

have created a jury question on the key issues. The first

issue in the case is did the defendant make the state-

ments complained of in the advertisement. That, of

course, is not denied, that's a given. The second issue is

if he did, were they seen by someone other than the

plaintiff. And we have had such testimony. That is not

an issue. The third are the statements about the plain-

tiff. The plaintiff is the only living human being re-

ferrea to in that ad and as we know from his testimony

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and that of others there are numerous references in that

ad that relate back logically and directly to the plain-

tiff. That's not an issue. The fourth issue, are the state-

ments false? This is with particular reference to the

charges of racist behavior and racism. Of course there

is a dispute between the parties as to that, but the issue

is at this juncture is the defendant entitled to strike our

evidence, have we not shown falsity. We have shown

falsity. We have shown falsity in two contexts. First

we have shown Clearly and unequivocably Bedford Moore

is not in general a racist, and I'm not going to regale the

court with the specifies of the testimony. But suffice it

to say those who have known him intimately and well,

socially and professionally recoil the notion that this

man harbored any ill will against any person because of

the color of his skin. It is false that he is a racist. It is

false that he is an adherent of racism, both of which

charges are leveled against him in the ad. Are the

charges leveled against him false specifically with ref-

erence to this proiect. And again viewing our evidence

in the light most favorable to us, the answer is

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a

undeniably yes, we have shown they are false. He was

never at any time, in any context motivated by the race

of the applicant, nor was he motivated at any time in

any context by the race of those persons who might

possibly live in Evergreen were it ever developed. I!

think particularly on this issue is the testimony of Mr.

Murray. Because apart from anybody else in this case

Mr. Murray occupied a confidential relationship with Mr.

Moore, and he was bound by a professional privilege.

And at that time Mr. Moore could have said anything of

any kind and expressed his true feelings about Mr.

Fleming and his development, and Mr. Murray didn't

even know the man was a black man until he went to

the Planning Commission and found out quite by surprise

that he was a black man. Although he had met with Mr.

Moore once alone and once with Henderson Heyward, it

never came up. The simple fact of the matter is that he

has never at any time done anything with respect to this

defendant or his planned development that was in any

way shape or form racist or based upon an adherence to

some form of racism as that has been defined or

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defamatory. I think first, in the first instance that's re-

ally been taken away from us by the Supreme Court of

Virginia. If they weren't defamatory they would have

reversed it in their final judgment because the self same

ad in every particular was a front argument when we

took this case down to Richmond on appeal from the

first trial. Albertus Harrison dissented, he was out voted

I think five to one, and the grounds of his dissent was

that it was not actual, it was not defamatory and he pre-

vented final judgment. He stood alone. I think the Su-

preme Court of Virginia has ruled that it's defamatory,

because if it weren't we wouldn't be here. But suffice to

Say we're going to have to instruct the jury on the issue

nevertheless. I don't suggest we take that away from

them. But that is peculiarly a jury issue. The definition

of defamation is does it hold the man up to publie con-

tempt, scorn and ridicule. That is a decision that is

made by the jury in the context of this community

bringing to bear their common experiences and under-

Standings of terminology as members of the community.

It is simply no way that issue could be taken away at this

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juneture. Did the plaintiff sustain actual injury as a re-

sult of the statements, yes, clearly he did, undeniably he

did and that hasn't been controverted. Now, I must

frankly confess I don't know what Mr. Poindexter is

talking about when he says that the testimony is that

there's no injury here. The Supreme Court of Virginia in

the majority opinion in Fleming v. Moore concluded we

hold, this is at 894 of the 221 Virginia opinion, we hold

that Moore is entitled to recover compensatory damages

upon proof of actual injury including such elements as

damage to his reputation and standing in the community,

embarrassment, humiliation and mental suffering. Spe-

cial damages which under the common law rule must be

shown as a prerequisite to recovery where the defama-

tory rewards are not actionable per se are not to be lim-

ited to pecuniary loss. He's testified to humilitation,

embarrassment, a stain on his reputation and various

other forms of mental anguish. Furthermore, we have,

also had testimony that serious questions were raised

about this man among peopie who did not know him inti-

mately, particularly that which was raised by Mr.

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a

Elwood. Black persons who were at the University who

didn't know him who were suddenly now concerned about

who this, what this individual truly thought as a member

of this self same university community. Now, insofar as

the allegation by the defense that if the defendant be-

lieves in what he says there is no case. That is not the

law any where in any jurisdiction. Because if it were

every person who was ever sued for defamation could

merely walk into court, file an affidavit stating I believe

what I said was true, and he'd be entitled to summary

judgment. That is not the way it works. We know that

insofar as compensatory damages are concerned, we

have to prove that he was in some way negligent in his

conduct toward this plaintiff. And I think we have

shown it in the way he has conducted himself and the

way in which he recklessly leveled charges of racism

and racist behavior in spite of all the public record and

all the evidence that was available to him. That is more

than negligence, that is knowledge of falsity and/or

reckless disregard for the truth and that is peculiarly a

jury question and there's simply no way that we ean say

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at this juncture that a jury question has not been cre-

ated on that issue. Now, in the Virginia Model Jury In-

structions the clear and convincing evidence standard

which must be shown as to knowledge of falsity and

reckless disregard for the truth which is the standard for

punitive damages is defined as production of evidence

that simply creates in your minds, referring to the jury,

a firm belief or conviction that he has proved the issue.

All right, can we say on this evidence, taking it in the

light most favorable to the plaintiff that we have given

this jury evidence upon which it cculd properly reach a

firm belief or a conviction that the charges of racism or

a racist behavior leveled against the plaintiff by the de-

fendant were m

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