# Opposition Brief — Dixon v. Ogden Newspapers, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 916

## 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~-

em

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?

11

Ne

ri

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

1V

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)

6

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

37

26

26

26

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.

2

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 * &

Wn

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

10

el

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

11

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.

12

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.”

13

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).

14

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.

(c) When a state court or
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

15

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

16

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

18

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

19

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

20

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

21

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,

23

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.

24

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

25

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

26

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

27

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

30

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

33

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

34

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

35

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

36

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.

T
L

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

37

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

38

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

a

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

40

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1142%3A3. Public record. Not legal advice.