Opposition Brief — Dixon v. Ogden Newspapers, Inc.

Supreme Court brief1992

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Text

OF THE CLERK

Supreme Court ot th nits Stati

OCTOBER TERM, 1992

RONALD L., DIXON and

DONALD J. NAEGELE,

Petitioners,

OGDEN NEWSPAPER, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Herbert G. Underwood

Counsel of Record

Karen Kahle

STEPTOE & JOHNSON

P.O. Box 2190

Clarksburg, WV 26302

(304) 624-8000

Counsel for Respondent

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond, Virginia 23219 (804) 648-3664

RESPONDENT'S RESTATEMENT

OF QUESTIONS PRESENTED

Re Whether the West Virginia

Supreme Court of Appeals, in accord with

well-settled principles of First

Amendment law enunciated by this Court

in, inter alia, New York Times Co. Vv.

Sullivan, 376 U.S. 254 (1964), Bose Corp.

vy. Consumers Union of United States,

inc., 466 U.S. 485, reh’gq denied, 467

U.S. 1267 (1984) and Masson v. New Yorkec

Magazine, Inc., Fh an & 2419, 115

L.Ed.2d 447 (1991), correctly reversed

the judgment entered by the trial court,

on the grounds that the public figure

plaintiffs failed to present clear and

convincing evidence that the newspaper

articles at issue were published with

actual malice and that the articles were

p~-

incapable of a defamatory meaning, as a

matter of law, following a complete and

independent appellate review of the

factual record as a whole?

Y 2 Whether special and important

reasons exist, warranting the exercise of

this Court’s discretion to grant the writ

sought, where the principles of First

Amendment law applied by the court below

were correctly interpreted and have been

well settled by this Court, making such

review purely episodic?

TABLE OF CONTENTS

Table of Authorities lv

Citations to Opinions and

Judgments Below 1

Statement of the Case 2

Summary of Argument 10

Argument 11

I. THE PETITION PRESENTS 11

NOTHING NOVEL, CONFLICTING,

SPECIAL OR IMPORTANT AND

THUS, ALTHOUGH JURISDICTION

IS PRESENT, THERE ARE NO

COMPELLING REASONS FOR

THIS COURT TO GRANT THE

PETITION.

Il. THE WEST VIRGINIA COURT 20

CORRECTLY CONCLUDED THAT

THE NEWS ARTICLES WERE

INCAPABLE OF A DEFAMATORY

EANING, AS A MATTER OF

LAW.

IIIl. THE COURT BELOW PROPERLY 23

INTERPRETED AND APPLIED

THE “ACTUAL MALICE”

STANDARD.

Conclusion 39

111i

TABLE OF AUTHORITIES

United States

Supreme Court Cases

Bose Corp. v. Consumers Union

of United States, Inc.,

466 U.S. 485, reh’g denied,

467 U.S. 1267 (1984)

i, £6. 17; 39. 264, 25

Hammerstein v. Superior Court of

California, 341 U.S. 491 (1951) ... 14

Harte-Hanks Communications, Inc.

Vv. Connaughton, 491 U.S. 657 (1989)

. < >» a! tere Os a?, a3, 24, #2, 27

Masson v. New Yorker Magazine. ie. .

111 S.Ct. 2419, 115 L.Ed.2a

447 (1991) “a a ee a ee os foe ed is BGs -Z2e

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)

i, 9, 11, 16, 24-27

Rice v. Sioux City Memorial Park

Cemetery, 349 U.S. 70 (1955) _ « « « 2S

Time, Inc. v. Pape, 401 U.S. 279,

reh’g denied, 401 U.S. 1015 (1971)

rine pe sy 33, 35, 37, 38

a a eS

Dixon v.

West Virginia

Supreme Court Cases

Ogden Newspapers, Inc.,

416 S.E.2d 237 (W.Va. 1992)

Long v. E

iS-2i,

qnor, 176 W.Va. 628,

346 S.E.2d 778 (1986)

Mauck v.

City of Martinsburg,

167 W.Va.

(1981)

332, 280 S.E.2a@ 216

Sprouse v. Clay Communication,

Bi, 29)

158 W.Va.

cert.

den

427, 211 S.E.2d 674

ied, 423 U.S. 882,

reh’gq denied, 423 U.S. 991 (1975)

United States Code

S sea

(1975),

i a

CITATIONS TO OPINIONS AND

JUDGMENTS BELOW

The opinion of the West Virginia

Supreme Court of Appeals is reported at

416 S.E.2d 237. A copy of the opinion

also appears in the Appendix (”A”) to the

Petition for Writ of Certiorari at A-5.

The Order of the West Virginia Supreme

Court of Appeals denying the Petition for

Rehearing appears in the Appendix to the

Petition for Writ of Certiorari at A-1.

The Order of the Circuit Court of

Ohio County, West Virginia, denying

defendant’s motions in the alternative

for judgment notwithstanding the verdict,

or for a new trial, appears in the

Appendix beginning at A-59. The opinion

and order of the Circuit Court of Ohio

County, West Virginia, denying

defendant’s Motion for Summary Judgment

in the Naegele case appears in the

Appendix beginning at A-72. The Judgment

Order of the Circuit Court of Ohio

County, West Virginia, entered on

November 10, 1988, appears in the

Appendix beginning at A-69.

STATEMENT OF THE CASE

Respondent Ogden Newspapers, Inc.

("Ogden”) ,' contends that the Statement

of the Case set forth in the Petition for

Writ of Certiorari is overblown and

argumentative, not the concise Statement

of the Case required by the Rules of this

Court. Therefore, respondent Ogden

provides the following succinct’ and

concise Statement of the Case.

1 , . ,

There 1s no parent or subsidiary

company to be listed per Rule 29.1 of the

Rules of United States Supreme Court.

Petitioners Dixon and Naegele were

policemen employed by the City of

Wheeling when a trial took place in

magistrate’s court for Ohio County in

Wheeling. The proceedings of that trial

were observed and reported by Warren

Bays, a reporter employed by The

Intelligencer and assigned to cover the

court system in Ohio County and Wheeling.

The magistrate’s court trial arose

out of the allegation by another city

policemen, Robert Heldreth, that he had

been threatened over the telephone by

George Stefanow, a Wheeling tavern owner,

because of Stefanow’s belief that his

name had allegedly been used by Officer

Heldreth to gain access to the *”Green

Door,” a suspected house of prostitution

located in Wheeling.

The testimony of Stefanow at the

trial in magistrate’s court was reported

by a court reporter at the direction of

the prosecuting attorney for Ohio County

and the reporter’s notes were transcribed

after the trial and were a part of the

record of this case upon appeal to the

West Virginia Supreme Court.

At the magistrate court trial, Bays

took written notes of the testimony. He

did not have available nor access to any

electronic recording device at the

magistrate’s court. Warren Bays

transcribed his notes, as a part of his

normal duties for The Intelligencer,

after the conclusion of the trial in the

late afternoon of May 2, 1983, before the

deadline for inclusion in the next

edition of The Intelligencer, a morning

newspaper. The reports by Bays, which

appeared as two separate news stories in

The Intelligencer, can be found in the

Appendix to Petition for Writ of

Certiorari. A-144; A-150.

These two news stories formed the

basis for the libel actions filed by

Dixon and Naegele, despite the fact there

is no question but that the contents of

the two stories were true and accurate:

Q. (Underwood) Everything that

appears in the article which

was in the second session (sic)

and which is headlined

‘Stefanow Found Innocent in

Phone Threat’ is true in the

Same as what was in the first

article; isn’t that correct?

A. (Dixon) Insofar as it goes,

yes sir. (Transcript of trial

court ("Tr.”) at 204).

x * &

Q. (Metzner) when you say the

articles are okay as far as

they go, what do you mean by

that?

A. (Dixon) Well, the articles

that I gave - George Stefanow

article is true to the extent

when he called me in ny

official capacity as a sergeant

on the front desk, I gave him

information that was allowed to

be given to anyone who tried to

obtain that information. And

that I did not give him

information prior to those

raids so as to prevent the

raids from taking place. But

that’s what I felt they were

trying to put - were trying to

Say or at least inferring that

I had done and I didn’t do

that. (Tr. 212).

see also rye 186-188, 200-201

(Testimony of Dixon). Naegele’s

testimony was to the same effect. Tr.

325-326. Stefanow also conceded that the

articles about his criminal trial were

essentially correct. Tr. 103-107.

In their respective libel actions,

Dixon and Naegele each contended that his

reputation had been damaged by the only

inference that could be drawn by the

reader from the stories, to wit: that

they each had given information

concerning a police raid upon the Green

Door to George Stefanow, Naegele’s

brother-in-law, and that the information

was given to Stefanow before the raid

took place, indicating official

misconduct and interference with the vice

raid.

The allegation of libel framed by

the pleadings was not that arising from

the publication of false facts,

misleading headlines or opinion - the

issue was that of innuendo or inference

which the petitioners claimed was

perforce dictated by the publications,

and that the innuendo or inference was

molded intentionally and with “actual

malice.” It was petitioners’ contention

that Bays had intentionally designed the

story to require this innuendo as a

consequence of a conspiracy between Bays

and Lieutenant Joseph Davis of the

Wheeling Police Department to damage the

reputation of Officers Dixon and Naegele.

As a consequence of trial in the

Circuit Court of Ohio County, Dixon and

Naegele were each awarded $250,000 for

compensatory damages and $50,000 punitive

damages. Post-judgment motions of the

defendant led to the elimination of the

punitive damage award but left intact

compensatory damages of a half-million

dollars.

By Order dated February 27, 1992 the

West Virginia Supreme Court of Appeals,

the court of last resort in the State of

West Virginia, reversed the judgment

entered for Dixon and Naegele by the

Circuit Court of Ohio County on the

ground that the petitioners failed to

present clear and convincing evidence, as

a matter of law, that the newspaper

accounts were published with the actual

malice required under New York Times Co.

v. Sullivan, 376 U.S. 254 (1964) and its

progeny, and further, that the

petitioners failed to establish, as a

matter of law, the falsity of the

newspaper accounts. In so doing, the

West Virginia Supreme Court of Appeals

correctly relied upon and applied

principles of First Amendment Law

relevant to libel actions filed by public

figures which have been stated and

reaffirmed by this Court since 1964. The

West Virginia Supreme Court correctly

reversed on the ground that the judgment

entered upon the jury verdict rendered on

behalf of the plaintiffs was unsupported,

as a matter of law, by clear and

convincing evidence of actual malice and

further, that the articles were incapable

of a defamatory meaning, as a matter of

law.

SUMMARY OF ARGUMENT

The petition for writ of certiorari

filed by Ronald L. Dixon and Donald J.

Naegele should be denied because there

are no “special and important reasons”

for the granting of said petition. In

reversing the trial court’s entry of

judgment upon the jury verdict for

plaintiffs, the West Virginia Supreme

Court of Appeals, the state court of last

resort, correctly applied principles of

federal constitutional law which have

been established and continually

reaffirmed by this Court since New York

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

(1964).

ARGUMENT

I. THE PETITION PRESENTS NOTHING

NOVEL, CONFLICTING, SPECIAL OR

IMPORTANT AND THUS, ALTHOUGH

JURISDICTION IS PRESENT, THERE

ARE NO COMPELLING REASONS FOR

THIS COURT TO GRANT THE

PETITION.

Pursuant to Rule 10 of the Rules of

United States Supreme Court, a writ of

certiorari is granted not as a matter of

right but pursuant to the discretion of

this Court. As a preliminary matter

jurisdiction must be present, pursuant to

28 U.S.C. § 12573

(a) Final judgments or

decrees rendered by the highest

court of State in which a

decision could be had, may be

reviewed by the Supreme Court

by writ of certiorari where the

validity of a treaty or statute

of the United States is drawn

in question or where the

validity of a statute of any

State is drawn in question on

the ground of its being

repugnant to the Constitution,

treaties, or laws of the

United States, or where any

title, right, privilege, or

immunity is specially set up or

claimed under the Constitution

or the treaties or statutes of,

or any commission held or

authority exercised under, the

United States.

(b) For the -purposes of

this section, the term “highest

court of a State” includes the

District of Columbia Court of

Appeals.

It cannot be denied that

respondent’s First Amendment rights under

the federal constitution, exercised

pursuant to its circulation of the

newspaper, The Intelligencer, have

clashed with petitioners’ rights under

state law to protection from libel.

Thus, in this action brought under state

libel law, respondent defended by

asserting a federal constitutional

privilege, thereby invoking the

jurisdiction of this Court once final

judgment was entered by the highest court

of West Virginia on May 13, 1992.

However, *(t)jhe presence of

jurisdiction upon petition for writ of

certiorari does not, of course, determine

the exercise of that jurisdiction for the

issuance of the writ is discretionary.”

Hammerstein _v. Superior Court _ of

California, 341 U.S. 491, 492 (1951). A

grant of certiorari issues “only when

there are special and important reasons

therefor.” Rule 10, Rules of United

States Supreme Court. No such reasons

are presented by the petition herein.

‘Special and important reasons’

imply a reach to a problem

beyond the academic or the

episodic. This is especially

true where the issues involved

reach constitutional

dimensions, for then there

comes into play regard for the

Court’s duty to avoid decision

of constitutional issues unless

avoidance becomes evasion. Cf.

the classic rules for such

avoidance stated by Mr. —

Brandeis in Ashwander

Tennessee Valley Authority, 297

U.S. 288, 341, 80 L.Ed. 688,

707, 56 S.ct. 466.

Rice v. Sioux City Memorial Park

Cemetery, 349 U.S. 70, 74 (1955)

(emphasis added).

Moreover, Rule 10 itself sets forth

the characteristic circumstances in which

the decision of a state court of last

resort will most likely be granted

review:

(b) When a state court of

last resort has decided a

federal question in a way that

conflicts with the decision of

another state court of last

resort or of a United States

court of appeals.

a United States court of

appeals has decided an

important question of federal

law which has not been, but

should be, settled by this

Court, or has decided a federal

question in a way that

conflicts with applicable

decisions of this Court.

The matter at bar does not fall within

any of the characteristically reviewable

situations set forth in Rule 19. The

federal principles discussed and applied

by the West Virginia court in its

decision below have been well settled by

this Court, beginning with New York Times

Co. v. Sullivan, 376 U.S. 254 (1964) and

its progeny, and the West Virginia court

interpreted and applied the principles

correctly, duly citing to New York Times

Co., supra, Bose Corp. v. Consumers Union

of United States, Inc., 466 U.S. 485,

reh’gq denied, 467 U.S. 1267 (1984) and

Masson v. New Yorker Magazine, Inc., 111

S.Ct. 2419, 115 L.Ed.2d 447 (1991), where

appropriate.

The instant petition is’ merely

petitioners’ attempt to secure an

“episodic” review of what they perceive

to be an incorrect application of well

settled federal constitutional principles

to this particular and specific set of

facts. Nothing novel, conflicting or

especially important is presented by this

petition. Even a cursory review of the

decision rendered by the West Virginia

court of last resort demonstrates that it

undertook an independent appellate review

of the evidence presented at trial as

required, see Harte-Hanks Communications,

Inc. v. Connaughton, 491 U.S. 657 (1989)

and Bose Corp., supra, and as previously,

properly interpreted by the West Virginia

court in Sprouse v. Clay Communication,

Inc., 158 W.Va. 427, 211 S.E.2ad 674

(1975), cert. denied, 423 U.S. 882, reh’g

denied, 423 U.S. 991 (1975), Mauck v.

City of Martinsburg, 167 W.Va. 332, 280

S.E.2da 216 (1981), and Long v. Egnor, 176

W.Va. 628, 346 S.E.2d 778 (1986), and it

determined, as a matter of law, that the

public figures failed to present clear

and convincing evidence that the

allegedly libelous newspaper articles

were published with actual malice. The

West Virginia court framed the issues as

follows: *”[{T]herefore, we must determine

first whether Bays’ articles were capable

of a defamatory meaning, and, if so,

whether the judgment entered for the

plaintiffs was supported by clear and

convincing proof of actual malice.”

Dixon v. Oqden Newspapers, I[Inc., 416

$.E.2a@ 237, 241 (W.Va. 1992); A-23.

Following a tedious independent review of

the evidence presented at trial, the

West Virginia court answered both

questions in the negative, and properly

reversed the judgment.

In determining the appropriate

standard for review, the West Virginia

court relied directly upon this Court’s

decision in Bose Corp., 466 U.S. 485,

quoting as follows:

The question whether the

evidence in the record in a

defamation case is of the

convincing clarity required to

strip the utterance of First

Amendment protection is not

merely a question for the trier

of fact. Judges, as expositors

of the Constitution, must

independently decide whether

the evidence in the record is

sufficient to cross the

constitutional threshold that

bars the entry of any judgment

that is not supported by clear

and convincing proof of ‘actual

malice.’*”

Bose Corp., 466 U.S. at 511, quoted in

Dixon, 416 S.E.2d@ at 241; #A-22.

Following a thorough review of the

evidence with the federal standard as its

guide, the West Virginia court concluded:

Thus, after reviewing both

the transcript of the

proceedings below and the

contents of the two newspaper

articles written by Warren

Bays, we conclude that the

plaintiffs did not present the

clear and convincing evidence

of actual malice that public

officials are required to show

in order to sustain an action

for libel. Actual malice must

be proven with convincing

Clarity, and the plaintiffs in

this case simply did not offer

sufficient evidence to meet

this standard.

For the foregoing reasons,

the judgment of the Circuit

Court of Ohio County is

reversed.

Dixon, 416 S.E.2d at 245; A-40.

II. THE WEST VIRGINIA COURT

CORRECTLY CONCLUDED THAT THE

NEWS ARTICLES WERE INCAPABLE OF

A DEFAMATORY MEANING, AS A

MATTER OF LAW.

Although the West Virginia court’s

analysis of defamatory capability is not

nor could it be completely separate and

distinct from its analysis of actual

malice, it is clear that the West

Virginia court correctly interpreted and

relied upon applicable federal

constitutional law principles. fThis is

manifested by a review of the following

portions of the West Virginia decision:

Although it is evident from the

transcript that Stefanow never

used the word ‘sources’ or

‘informants’ to describe the

plaintiffs, the article

accurately reported Stefanow’s

reluctance to respond when

questioned about who ‘informed’

him of the raid. When asked,

‘Would you tell us the names of

those police officers that gave

you information?’, Stefanow

replied, ‘I will not because it

would tend to incriminate

them.’ When considered within

this context, Bays’ use of the

words ‘sources’ or ‘informants’

was not inappropriate, and it

certainly could be not

characterized as a ‘knowing

falsehood. ’

Dixon, 416 S.E.2d at 242-43; A-29-30. In

a footnote signaled at the end of this

conclusion:

passage, the West Virginia

explained its justification for

In Masson Vv. New Yorker

Magazine, Inc., 501 U.S.

» 111 $.Cct. 2419, 115

L.Ed.2d 447, 472 (1991), the

United States Supreme Court

addressed the issue of whether

actual malice is demonstrated

through the publication of a

quotation with the full

knowledge that the quotation

does not contain the exact

words used by a public figure.

The court rejected this strict

standard, with Justice Kennedy

writing back, “{i]f an author

alters a speaker’s words but

effects no material change in

meaning, including any meaning

conveyed by the manner or fact

of expression, the speaker

suffers no injury to reputation

that is compensable as a

defamation.”

at 243, fn. 5; A-30-31. The

court

that

West

Virginia court properly applied and cited

to applicable federal law in rendering

its conclusion that the articles at issue

were not capable of a defamatory meaning,

as matter of law.

III. THE COURT BELOW PROPERLY

INTERPRETED AND APPLIED THE

“ACTUAL MALICE* STANDARD.

Regardless of the level of

explicitness with which the West Virginia

court rejected Dixon and Naegele’s

contention that the articles were false

and capable of defamatory meaning, the

court was quite clear in its finding that

the judgment entered on behalf of the

plaintiffs was not supported by clear and

convincing evidence of actual malice, as

that term has been defined by this Court

in cases involving alleged defamation of

public officials.

The appropriate federal standard, as

delineated in Harte-Hanks Communications,

The question whether the

evidence in the record in a

defamation case is sufficient

to support a finding of actual

malice is a question of law.

Bose Corp. v. Consumers Union

of United States, Inc. 466

U.S., at 510-511, 80 L.Ed.2d

502, 104 S.Ct. (1949). This

rule is not simply premised on

common law tradition, but on

the unique character of the

interest protected by the

actual malice standard. Our

profound national commitment to

the free exchange of ideas, as

enshrined in the First

Amendment, demands that the law

of libel carve out an area of

‘*"preathing space”’ so that

protected speech is not

discouraged. Gertz, 418 U.S.,

at 342, 41 L.Ed.2d 789, 94

S.Ct. 2997 (quoting NAACP v.

Button, 371 U.S. 415, 433, 9

L.Ed.2dad 405, 83 S.Ct. 328

(1963); New York Times Co., 376

U.S. at 272, 11 L.Ed.2d 686, 84

S.ct. 710, 95 A.L.R.2d 1412

(same).

Harte-Hanks, 491 U.S. at 685-86.

Inc. v. Connaughton, 491 U.S. 657 (1989),

was correctly interpreted and applied:

In determining whether’ the

constitutional standard has

been satisfied, the reviewing

court must consider the factual

record in full. Although

credibility determinations are

reviewed under the clearly

erroneous standard because the

trier of fact has had the

“opportunity to observe the

demeanor of the witnesses,”

Bose, 466 U.S. at 499-500, 80

L.Ed.2d 502, 104 S.Ct. 1949,

the reviewing court must

“‘examine for [itself] the

statements in issue and the

circumstances under which they

were made to see .. . whether

they are of a character which

the principles of the First

Amendment .. . protect,’” New

York Times Co., 376 U.S., at

285, 11 L.Ed.2d 686, 84 S.Ct.

710, 95 A.L.R.2d 1412 (quoting

Pennekamp v. Florida, 328 U.S.

331, 335, 90 L.Ed. 1295, 66

S.Ct. 1029 (1946)).

Id. at 688-89.

Petitioners incorrectly contend that

the West Virginia Supreme Court of

Appeals implicitly disregarded the jury’s

determination of witness credibility by

enacts nt

its reversal, in contravention of the

principles enunciated in Harte-Hanks.

That is not the case. Instead, the West

Virginia court properly recognized the

importance of independent appellate

review of the evidence where First

Amendment privileges are at stake, as

opposed to the garden variety tort case:

In Sprouse Vv. Clay

Communication, Inc., 158 W.Va.

427, 211 S.E.2da 674, 681

(1975), this court stated that

‘{ujnder the mandate of New

York Times v. Sullivan, supra,

A is incumbent upon = an

appellate court in determining

the validity of a libel

judgment both to consider the

law and to make an independent

evaluation of the evidence to

insure First Amendment

protection to publishers. ’

‘(W)here First Amendment rights

are implicated, courts have

applied a stricter standard in

judging the sufficiency of a

complaint.’ Long v. Egnor, 176

W.Va. 628, 346 S.E.2da 778, 782

(1986). In Syl. pt. 2 of Mauck

v. City of Martinsburg, 167

a Re A TY ee ene,

TE LE A

W.Va. chy 2 280 S.E.2da 216

(1981), we stated that as a

result of New York Times v.

Sullivan ‘whenever there is a

First Amendment defense to

actions under state law, the

state court is required to be

a judge of both the facts and

the LOAWs« « « o”

Dixon, 416 S.E.2ad at 241; A-21-“22 >

Nowhere in its opinion did the West

Virginia court challenge the credibility

of any of the witnesses but rather, it

questioned the sufficiency of the

evidence presented by petitioners.

The West Virginia court tediously

“examine(d] for [itself] the [articles]

in issue and the circumstances’ under

which they were [printed and determined

that] they are of a character which the

principles of the First Amendment

protect.” See Harte-Hanks, 491 U.S. at

688. This was premised upon a proper

CT TE AE 5 A PE TT A a eT

determination that the plaintiffs did not

present sufficient evidence to surpass

the "clear and convincing” threshold

required before a finding of “"actual

malice” will be sustained.

The *factual record in full’, id.,

includes not only the oral testimony and

evidence which could be drawn therefron,

but also the allegedly libelous newspaper

articles. The West Virginia court’s

review of the content of the articles in

the context of the circumstances mandated

the conclusion that the articles

themselves were substantially true.

Therefore, the Court concluded that

unless the petitioners had presented

clear and convincing evidence of an

intentional omission of the timing “of

the vice raid information disclosure in

order to leave readers with the

impression that the [petitioners]

wrongfully supplied Stefanow with

information,” Dixon, 416 S.E.2d at 244;

A-38, the judgment below would have to be

reversed. The court noted that

petitioners asserted a “conspiracy

theory” at trial, in support of a finding

of actual malice on the part of

respondent’s reporter:

The (petitioners ’” }

evidence of actual malice

consisted primarily of alleged

conspiratorial ties between

Intelligencer reporter Warren

Bays and the Wheeling Police

Department. Bays and Chief of

Detectives Joseph Davis were

admittedly personal friends.

Bernard ‘Sonny’ Watson, who was

an employee of George Stefanow,

testified that when Bays and

Davis were leaving the

courtroom after Stefanow’s

trial, Davis said something to

the effect of ‘get those m-f-

‘s' and that Bays then nodded

and winked [grinned] in

response.

The plaintiffs also cited

Bays’ two May 3, 1983 newspaper

articles as further evidence in

support of their conspiracy

theory. They argue that both

articles contained exaggerated,

distorted, and misleading

renditions of the substance of

Stefanow’s testimony.

Id. at 241; A-24=-25.

In its independent review, the West

Virginia court carefully compared the

evidence of the circumstances and the

testimony received at the magistrate

court trial, to the articles themselves.

The court ultimately concluded, inter

. 2

alia, as follows:

Evidence that a media defendant

intentionally ‘avoided’ the

truth in its’ investigatory

techniques or omitted facts in

order to distort the truth may

support a finding of actual

malice necessary to sustain an

action for libel. In this

instance, this Court is

convinced that the judgment for

the plaintiffs must be reversed

unless the newspaper

intentionally omitted the time

of the vice raid information

disclosure in order to leave

readers with the impression

that the plaintiffs wrongfully

supplied Stefanow with

information. Evidence of such

behavior would support’ the

conclusion that the newspaper

published tthe article with

knowledge that it was ‘false or

misleading’ or with a reckless

and willful disregard of the

truth. However, this is

unquestionably a difficult

thing to prove with ’convincing

clarity,’ and we do not believe

it was done by the conspiracy

theory advanced by the

plaintiffs in this case.

Td. at 244; A-38-39.

The West Virginia court made no

assertions with regard to the

“credibility” of the evidence presented

in furtherance of the conspiracy theory

but simply concluded that the evidence

oP?

was insufficient, as a matter of law, to

support a finding of actual malice.

Respondent submits that the West

Virginia court properly § found, upon

independent appellate review, failure of

petitioners to present the "clear and

convincing” evidence necessary to

establish that the articles under attack

were published with actual malice.

Petitioners relied on a scintilla of

“conspiracy” evidence, winking and

nodding, which is merely colorable and

not significantly probative. There was

the sole contention that the respondent’s

reporter nodded and winked when a

superior of the petitioners made a

derogatory comment about getting then.

Such evidence, standing alone, was so

lacking in probative value that the West

Virginia court had no choice but to

reverse the judgment, as it did by a vote

of five to zero.

The West. Virginia court’s reversal

of the trial court’s judgment is also

consistent with this Court’s decision in

Time, Inc. v. Pape, 401 U.S. 279, reh’g

ime, iM

denied, 401 U.S. 1015 (1971). In Pape,

this Court explained the important

distinction between a *"falsified” news

report and an erroneous” news report for

purposes of First Amendment privilege:

Time’s omission of the word

“alleged” amounted to the

adoption of one of a number of

possibile rational

interpretations of a document

that bristled with ambiguities.

The deliberate choice of such

an interpretation, though

arguably reflecting a

misconception, was not enough

to create a jury issue of

mmalice” under New York Times.

To permit the malice issue to

go to the jury because of the

omission of a word like

“alleged,” despite the context

of that word in the Commission

Report and the external

evidence of the Report’s

overall meaning, would be to

impose a much stricter standard

of liability on errors of

interpretation or judgment than

on errors of historic fact.

New York Times was

premised on a recognition that,

as Madison put it, “Some degree

of abuse is inseparable from

the proper use of every thing;

and in no instance is this more

true than in that of the

press.” 4 J. Elliot’s Debates

on the Federal Constitution 571

(1876). With respect to errors

of fact in reporting events, we

said in New York Times: af.

rule compelling the critic of

official conduct to guarantee

truth of all his’ factual

assertions -- and to do so on

pain of libel judgments

virtually unlimited in amount

-- leads to . , ‘ ‘self-

censorship’. Allowance of the

defense of truth, with the

burden of proving it on the

defendant, does not mean that

only false speech will be

deterred. Even courts

accepting this defense as an

adequate safeguard have

recognized the difficulties of

adducing legal proofs that the

alleged libel was true in all

its factual particulars. .. .

Under such a rule, would-be

critics of official conduct may

be deterred from voicing their

criticism, even though it is

believed to be true and even

though it is in fact true,

because of doubt whether it can

be proved in court or fear of

the expense of having to do

so.” 376 U.S., at 279, ia

L.Ed.2ad at 706, 95 A.L.R.2d

1412.

These considerations apply

with even greater force to the

situation where the alleged

libel consists in the claimed

misinterpretation of the gist

of a lengthy government

document. Where the document

reported on is so ambiguous as

this one was, it is hard to

imagine a test of “truth” that

would not put the publisher

virtually at the mercy of the

unguided discretion of a jury.

Pape, 401 U.S. at 290-91.

With regard to the magistrate court

trial about which the allegedly libelous

articles reported, petitioners concede

that *Bays admittedly was (at the least)

consciously confused about the post-raid

time frame of Stefanow’s discussions with

Dixon and Naegele and knew that at the

time he wrote the news articles of May 3,

1983." Petition for Writ of Certiorari

—

to the Supreme Court at 66. In this

regard, the West Virginia court noted:

reporter Warren Bays

testified that the whole day in

court was confusing. When he

waS questioned about exactly

when Dixon and Naegele gave

Stefanow information about the

raid, Bays stated, ’I think it

was unclear to an awful lot of

people. ’[ ] Bays also

testified that it was ‘absurd’

to charge that he purposely

omitted the time of the

information transfer. He

pointed out that his articles

did not state that the

information was given out

either prior to or after the

raid.

We believe it is necessary

to emphasize that the

implication that the plaintiffs

were engaged in wrongdoing was

not raised first by Bays’

omission of the time frame

information in his_ articles,

but by Stefanow’s testimony, in

which he related his fear of

‘incriminating’ the officers.

This exchange between Stefanow

and the prosecution was

reported with substantial

accuracy in Bays’ article.

Bays also wrote that, ‘(t)jhere

was no testimony as to exactly

what was discussed between

Stefanow and the police

officers.’ It is important to

note as well that in his

article, Bays included Police

Chief Weith’s comment’ that

Stefanow’s testimony in and of

itself was not indicative of

wrongdoing. Weith stated that

he would ‘study the testimony

given’ to determine if

‘official police business had

been leaked out.’

Yixon, 416 S.E.2d at 243; A-32-34.

In accord with principles of Pape,

the West Virginia court correctly found

that insufficient ”conspiracy” evidence

was presented, given the ambiguous tone

of Stefanow’s testimony, to establish a

lssue on the question of actual

malice and thus, the court’s reversal

properly rescued respondent’s First

Amendment rights from the “unguided

discretion of a jury.” Pape, 401 U.S. at

CONCLUSION

For the foregoing reasons, the

Petition for Writ of Certiorari to the

est Virginia Supreme Court of Appeals

should be denied.

Respectfully submitted this _ day

of September, 1992.

Herbert G. “Underwood

Counsel of Record

‘ “

ion at

Karen Kahle

OHNSON Union Nat’1 Center E.

] P O Box 2190

Clarksburg, WV 26302

(304) 624-8000

Attorneys for

Respondent

FILING AND MAILING CERTIFICATE

I hereby certify that on this 11th day of

September, 1992, I filed 40 copies of a Brief in

Opposition to Petition for Writ of Certiorari with

the Clerk’s Office of the Supreme Court of the

United States and further certify that I mailed via

——first class mail, postage prepaid, the required (3)

copies to William R. Metzner, 2212 National Road,

Wheeling, WV 26003.

The necessary filing and mailing was

performed in accordance with the instructions

given me by counsel in this case.

Lawyers Printing Company

Suite B-115

7th & Franklin Building

Richmond, Virginia 23219

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.