Petition for Writ of Certiorari — Peeler v. Spartan Radiocasting, Inc.

D ~~ aa en

961629 apr 1 4 1997,

No.___ggeice GF THE GLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

HARVEY S. PEELER,

Petitioner,

vs.

SPARTAN RADIOCASTING, INC.

AND ALLAN RAY TEDDER,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SOUTH CAROLINA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

CLARENCE S. NORRIS

Counsel of Record

26 North Main Street

Sumter, SC 29151

(803) 778-6531

No.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1996

HARVEY S. PEELER,

Petitioner,

VS.

SPARTAN RADIOCASTING, INC.

AND ALLAN RAY TEDDER,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SOUTH CAROLINA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

CLARENCE S. Norris

Counsel of Record

26 North Main Street

Sumter, SC 29151

(803) 778-6531

QUESTIONS PRESENTED FOR REVIEW

1. May the South Carolina Supreme Court interpret the

First Amendment as imposing burdens on a public figure

plaintiff greater than the burdens imposed by the decision of

the United States Supreme Court?

2. May a state court - in conducting a de novo review of

whether the record contains clear and convincing evidence of

actual malice in a public figure defamation case — reject the

jury's finding of falsity, require that faisity be proven by clear

and convincing evidence, reject the jury's credibility

determinations, and then rule that the plaintiff's failure to

prove falsity precludes a finding of actual malice?

3. Where a television reporter splices video interviews

with citizens to make it appear that the citizens believe that a

public figure plaintiff is involved in criminal conduct — even

though the citizens expressly told the reporter that they did

not believe the plaintiff was involved with the forgeries — and

then broadcasts the spliced interviews to the public, does the

reporter's conduct in fabricating the "interviews" and altering

the meaning of the responses in this fashion provide

sufficient evidence of actual malice to Support a jury verdict

in favor of the public figure?

4. Where a television reporter misquotes a candidate for

public office and falsely broadcasts to the public that the

candidate has accused his public figure opponent of

involvement in a crime when the candidate in fact accused

only the public figure's supporters of involvement in the

crime, does the misquotation provide sufficient evidence of

actual malice to support a jury verdict in favor of the public

figure?

Re Pe

PARTIES TO THE PROCEEDING

The parties to this proceeding are Harvey S. Peeler,

Petitioner, and Spartan Radiocasting, Inc., and Allan Ray

Tedder, Respondents.

tee

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR a inj, , SARS OE ee i

PARTIES TO THE PROCEEDING... IS li

SABLE OF AUTHORITIOS. vi

PONE II ois ccccscscuina e l

sictecopscoteh iaicnsnatt re tT EE Ee en l

CONSTITUTIONAL PROVISION INVOLVED............. l

STATEMENT OF THE CASE..ww... 2

REASONS FOR ALLOWANCE OF THE POPE sec: 13

I. THE MAJORITY'S DECISION WITH

RESPECT TO THE AUGUST 27

BROADCAST IS CONTRARY TO

THE DECISIONS OF THIS COURT

BECAUSE THE MAJORITY MADE

A DE NOVO REVIEW OF FALSITY,

APPLIED A CLEAR AND CON-

VINCING EVIDENCE STANDARD

TO THE ISSUE OF FALSITY, AND

MADE A FORBIDDEN CREDIBIL-

ITY DETERMINATION IN CON-

CLUDING THAT NEITHER

FALSITY NOR MALICE HAD BEEN

PROVEN BY CLEAR AND CON-

VERIOaPO SWRI 13

sib os

Il. THE MAJORITY'S DECISION IS

CONTRARY TO THIS COURT'S

DECISION IN MASSON V. NEW

YORKER MAGAZINE AND EFFEC-

TIVELY IMPOSES A GREATER

BURDEN ON PUBLIC FIGURE

PLAINTIFFS THAN ANY PRIOR

UNITED STATES SUPREME

CRP PED peepasuseconsenoupicdeibictiansioseunsos 18

CEFF cnsijnissncersd pictvankah etetacroeanesienda Meena 23

APPENDIX A

Decision of South Carolina Supreme Court

in Peeler v. Spartan Radiocasting, Inc.............0.. A

APPENDIX B

Order Denying Petition for Rehearing................. B

APPENDIX C

June 10, 1992 Order of Trial Court

Denying Summary Judgment Motion ................. &

APPENDIX D

December 22, 1992 Order of Trial Court

Denying Post-Trial Motions....................0006 D

APPENDIX E

Fie PON sca hdc eeaonieenaen E

ELAS accesses eee

APPENDIX F

United States Constitution, Amendment I... F

TABLE OF AUTHORITIES

Page

Cases

Bose Corp. v. Consumers Union, 466 U.S. 485

ERSTE csintissdiecnckstinesessselousdcenelsiwiad uassco aia taitaree 13, 15

Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657 (1989)........ 14, 15, 17, 21

Masson v. New Yorker Magazine, 501 U.S. 496

EMD scvcle sec cnainichiceignvisditpeesbssesuiiemscavabiencedavarens 14, 18

McFarlane v. Sheridan Square Press, Inc., 91

ae RR Cars Ss HUE vc testers ron od sisoscdonss coms et

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

RIPE scicaneceisssoncetacnniicekeiiaatiatias ised aieaaiod, 13

Newton v. National Broadcasting Co., 930 F.2d

662 (9th Cir. 1990), cert. denied, 502 U.S.

RE sititiciienccusains becahaudinouds Sous caesauiees 17

Reuber v. Food Chemical News, Inc., 925 F.2d

703 (4th Cir.), cert. denied, 501 U.S. 1212

MIR sc icealscucs ces catcemann de tacit ses nagecsnca ata ma eae 17

St. Amant v. Thompson, 390 U.S. 727, 732

EDD ssiessa thin sab) weaves pilcsoe es sous asile dane wim accra: 21

Townes Associates Ltd. v. City of Greenville, 266

SA. Sh, ZEAE S.A TIS, TIS CEST OD vscvsivcssenceansnsscaes 15

ie

OPINION BELOW

The opinion of the South Carolina Supreme Court,

(Harvey S. Peeler v. Spartan Radiocasting, Inc. and Allan Ray

Tedder, No. 24531, November 18, 1996) is reported at _

S.C. __, 478 SE.2d 282 (1996). A copy of the opinion

appears in Appendix A. The January 13, 1997 order of the

South Carolina Supreme Court denying the Petition for

Rehearing appears in Appendix B.

JURISDICTION

The South Carolina Supreme Court entered and filed the

judgment and opinion in this case on November 18, 1996.

The Petitioner timely filed a Petition for Rehearing which was

denied by Order filed January 13, 1997. This petition for

Writ of Certiorari has been filed within 90 days of that date.

This Court has jurisdiction of the Petition for Wnit of

Certiorari under 28 U.S.C. § 1257(a) because Petitioner has

timely filed a petition for writ of certiorari of a final judgment

of a state supreme court in which the state court in a public

figure plaintiff defamation case applied incorrect and

unsettled principles of constitutional malice.

CONSTITUTIONAL PROVISION

INVOLVED

"Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the nght

of the people peaceably to assemble, and to petition the

Government for a redress of grievances." U. S. Const. amend

I.

x

STATEMENT OF THE CASE

This defamation by fabrication action arose out of two

televised news reports concerning Petitioner Harvey S.

Peeler, a candidate for re-election to the South Carolina

Senate, and a controversy involving the forging of signatures

on a petition drive to have one J.R. Stroupe placed on the

ballot. These news reports were prepared by Respondent

Alian Ray Tedder and were broadcast by his employer

Spartan Radiocasting, Inc. In one news report, Tedder

reported that J.R. Stroupe had accused Senator Peeler of

being involved in the forgeries, although the evidence

presented at trial showed that Stroupe never made the

accusation and that Tedder knew this. In the other news

report, Tedder edited on camera interviews he conducted with

two citizens to make it appear that these citizens believed

Senator Peeler had been involved in the forgeries, even though

both citizens "testified that they specifically told Tedder

they did not think Peeler was involved with the forgeries."

(478 S.E.2d at 285, Waller, J., dissenting). On appeal from a

jury verdict in favor of Senator Peeler, the South Carolina

Supreme Court reversed on grounds that the record lacked

clear and convincing evidence of actual malice. The court

reversed the jury’s verdict even though Respondents’ own

news director testified with respect to the reports that “it

would seem to me we are dealing with fabrication.” (R.

00255, lines 16-18).

Following incumbent state Senator Harvey Peeler's

victory in the 1988 Democratic primary for a South Carolina

Senate seat, J.R. Stroupe began a petition drive to have his

name placed on the November ballot as a candidate opposing

Senator Peeler. Stroupe and his supporters gathered petition

signatures for this purpose and filed the petitions with the

state Election Commission. After receipt of the petitions, the

Election Commission received reports that the signatures of

Ts

some of the people whose names appeared on the petitions

had been forged. The State Law Enforcement Division

(SLED) began an investigation of the allegations.

On Monday, August 29, 1988 WPSA, a television

station owned by Respondent Spartan Radiocasting, assigned

television reporter Ray Tedder to cover the story. Tedder

interviewed or talked with a number of people connected

with the controversy. As Tedder acknowledged at trial,

neither the state investigating agents, the voter registration

people, the Election Commission, or anyone else gave him

any indication that Senator Peeler himself was under

suspicion of being involved with the forgeries.

Later that day Tedder conducted a telephone interview

with Stroupe and proceeded to Stroupe's one room grocery

store to talk with Stroupe and his supporters. Tedder talked

with Stroupe friend and supporter Haynes Mullinax about

the controversy. Tedder also talked with Stroupe. As

Mullinax testified, Stroupe was visibly drunk at this time and

in fact had been drunk for about three or four previous days.

Stroupe looked "terrible," with "bloodshot eyes." Stroupe

donned sunglasses and went outside the store where Tedder

conducted an on camera interview with Stroupe.

At no time during the on camera interview did the

intoxicated Stroupe accuse Senator Peeler of being involved

with the forgeries. Haynes Mullinax, who was present at the

grocery store when Tedder talked with Stroupe and also

observed the on-camera interview filmed outside the store,

expressly testified that Stroupe never told Tedder that Peeler

had anything to do with the forgeries. Although Tedder

testified at trial that Stroupe did tell him off-camera that

Stroupe believed that "Senator Peeler or someone in his

camp...somehow caused these forgeries to occur" (R. 00151),

Senator Peeler impeached this testimony by introducing

deposition testimony in which Tedder had stated that he

could not remember "for sure" whether Stroupe had accused

Peeler of the forgeries and that he only remembered Stroupe

accusing Peeler’s supporters of this. (R. 00152, 00154).

Tedder returned to the station and prepared the newscast

for broadcast. On Monday, August 29, 1988 WPSA

broadcast the report prepared by Tedder. Referring to the

problem with the forged petitions, Tedder told viewers that

Stroupe had claimed that "Peeler or his supporters engineered

this problem.” Tedder, however, presented no video of

Stroupe actually making this accusation. The transcript of

the entire newscast is as follows:

RAY TEDDER: These SLED agents are

pouring over petitions that have been filed by

JR Stroupe, a former Cherokee County

Councilman who wants to run for state senate.

The State Election Commission says twenty

people have signed affidavits saying they

didn't sign the petitions, that someone forged

their signatures. These agents are trying to

find out if there are more. At Stroupe's service

station near Thickety Mountain supporters

are claiming its just dirty politics.

J.R. STROUPE: Everything was fine until I

asked to see them.

RAY TEDDER: Stroupe says he _ had

hundreds of people working for him trying to

get enough signatures to get him on the ballot

in November opposite incumbent State

Senator Harvey Peeler. He says he doesn't

know who might have forged the signatures,

but he claims Peeler or his supporters

engineered this problem. Peeler says, that's

nonsense.

~ a

HARVEY S. PEELER, JR.: The first time |

heard about it, Ray, was yesterday afternoon.

It took me totally by surprise.

RAY TEDDER: For election officials finding

out who did it is not as important as finding

out how many signatures are valid. They have

to certify the petitions by September Ist. In

Gaffney, Ray Tedder, TV-7 eyewitness news.

Tedder's declaration that Stroupe had accused Senator

Peeler of the forgeries was a WPSA "exclusive." Four local

newspapers were also covering the controversy that week.

None of these newspapers reported that Stroupe had accused

Senator Peeler of committing the forgeries — consistent with

Haynes Mullinax’s eyewitness testimony, they reported

only that Stroupe had accused Peeler's supporters of

involvement in the forgeries.

On Thursday, September 1, 1988, Tedder prepared a

second newscast conceming the controversy. After leaming

from state officials that Stroupe had failed to qualify for the

ballot, he interviewed Stroupe to obtain his reaction. He then

went to a local supermarket and conducted an on camera

interview of two shoppers, John Gimball and Arthur Hall,

who had exited the store. According to Gimball, Tedder

during this interview asked him Only questions pertaining to

politics in - general. Specifically, Tedder asked Gimball

whether he believed it was “possible in America that

politicians may do some things that were not exactly right to

win." (R. 00126). Tedder also asked Gimball whether he

thought that "there is a lot of things that people would know

but they not going to come forward or to this effect?” (R.

00126). Gimball responded "It wouldn't surprise me. I mean

there's so much things that go on that people won't say

nothing about it." Tedder did not ask Gimball whether he

believed Senator Peeler had been involved in the forgeries.

me Oe

And Gimball's final comment to Tedder was that Gimball did

not believe that Peeler "would do anything like we were

discussing in general with politics." (R. at 00128).

Tedder also interviewed shopper Arthur Hall. He asked

Hall whether Hall believed that Senator Peeler had anything

to do with SLED coming to Cherokee County to investigate.

Hall responded "[m]y opinion is that Harvey has something

to do with it." At no time during the interview, however, did

Tedder ask Hall if believed Senator Peeler had anything to

with the forgeries.

Tedder returned to the station and prepared the second

newscast. On Thursday, September 1, 1988, Channel Seven

broadcast Tedder's report. Appearing on camera, Tedder told

viewers that state agents were continuing to investigate to

determine who had committed the crime of forging the

petitions; that Stroupe supporters believed that someone in

the Peeler camp had set Stroupe up; and that Peeler had

stated that he had nothing to do with it. After stating Senator

Peeler's denial, Tedder commented "Peeler will be hard

pressed to convince a lot of people. They believe its

Cherokee County politics as usual." Immediately following

these comments, the on-camera answers given by Gimball and

Hall during their interviews were spliced into the footage so

that it appeared that they were commenting on Tedder's

statement that it would be "hard to convince people" that

Peeler was not involved in the forgeries. The transcript of the

entire newscast is as follows:

RAY TEDDER: According to the South

Carolina elections officials twenty people

claim their names were forged on these

petitions and that helped keep J.R. Stroupe

twenty-seven away from having enough to get

on the ballot opposite incumbent state

senator, Harvey Peeler. These SLED agents

=

sorting the petitions are continuing to

investigate hoping to find out who committed

the crime. J. R. Stroupe is conducting his own

investigation. Stroupe wants to prove he had

nothing to do with the forgeries and the

supporters who gathered at his service station

believe someone in the Peeler camp set

Stroupe up. Peeler says he has nothing to do

with it. But Peeler will be hard pressed to

convince a lot of people. They believe its

Cherokee County Politics as usual.

John Gimball:

It_wouldn't surprise me. I mean there's so

much things that go on that people won't say

nothing about it.

Arthur Hall:

My_opinion is Harvey has got something to

with it.

After the second broadcast, Senator Peeler became angry

at WPSA because they had failed to give him an opportunity

to respond to the accusations that he was involved in the

forgeries. Senator Peeler complained to Channel 7 and he and

his brothers went to a meeting at the station to discuss the

Situation. They met with Tedder and news director Harvey

Cox and complained about not being given an opportunity to

respond to Stroupe's accusation. Prior to the meeting, Cox

attempted to locate the recording of the Thursday newscast —

the "air check" — that was played on the air. Cox discovered,

however, that the air check of the Thursday broadcast had

"disappeared." Cox later leamed that this air check tape had

been bulk erased.

=~ oo

The absence of an air check for this particular broadcast

was quite unusual. Cox testified that Channel Seven kept air

checks of ninety-nine percent of its broadcasts for about one

week after each week's broadcasts. Cox could remember only

one prior occasion when an air check had been erased. Cox

did not know who had erased the air check and testified that

he did not mean to suggest that he thought that Tedder had

done so. Cox did locate a tape which contained the news

story that Tedder prepared. At the meeting with Senator

Peeler and his brothers, Cox played this tape. Senator Peeler,

however, insisted that the tape did not contain the entire

story broadcast over the news. In particular, Senator Peeler

told Cox that the actual broadcast had contained a still picture

of himself and that an anchor lead-in to the story proclaimed

“Peeler accused of forgery.”

On August 6, 1990 Senator Peeler filed suit against

Spartan Radiocasting, Inc. and Allan Ray Tedder in the Court

of Common Pleas of Spartanburg County, South Carolina. In

this suit, Senator Peeler alleged that the Respondents had

published defamatory matter about him during two television

newscasts and sought to recover compensatory and punitive

damages. (R. 00018-00028). The Respondents filed an

Answer and Amended Answer denying that they had

published any actionable false or defamatory statements

about the Respondent and alternatively contending that any

defamatory matter published was not published with actual

malice. (R. 00030, 00058).

The Respondents subsequently moved for summary

judgment on grounds, inter alia, that the Petitioner had failed

to present evidence sufficient to submit to the jury on the

question of whether the defamatory newscasts had been

published with actual malice. (R. 00047). Senator Peeler

opposed this motion on grounds that the jury could find

actual malice, from the evidence showing that Tedder had

fabricated the false allegations. (R. 00110-00111). By Order

ain

dated June 9, 1992 the trial court denied the motion on

grounds that the evidence showing that Tedder had materially

altered the meaning of the statements made by the

interviewees raised questions of fact as to whether the

publications had been made with actual malice. (R. 00002-

00004).

At trial a number of people, including Gimball and Hall,

testified that they understood this broadcast as containing

declarations by Gimball and Hall that they believed that

Senator Peeler was involved in the forgeries. Gimball testified

that the broadcast was not an accurate reflection of what he

told Tedder and that he did not think at the time he gave the

interview that his response would imply that Peeler was

involved in forgeries. The words which Tedder said on the

video preceding Gimball's comment ("But Peeler will be hard

pressed to convince a lot of people. They believe its

Cherokee County Politics as usual") were never mentioned to

Gimball during the interview. According to Gimball, his

answer "“[i]t wouldn't surprise me" was an answer to a

question about general politics.

Hall also testified that the broadcast made it appear that

he said something he did not say — viz., that he believed that

Senator Peeler was involved in the forgeries. Hall described

the broadcast as "a damn lie, I didn't say nothing about no

forgery." (R. 00236). He felt that the broadcast hurt Senator

Peeler's reputation. After hearing the testimony of the

eyewitnesses who testified that they never said what Tedder

reported, Harvey Cox, the news director at Tedder’s station,

testified that “[b]ased on what I have heard, it would seem to

me we are dealing with fabrication.” (R. 00255, lines 16-18).

The trial court denied the directed verdict motion filed by

the Respondents on grounds, inter alia, that Senator Peeler

had presented evidence from which the jury could find

publication with actual malice. (R. 00386). At the close of

- 19 —

evidence, the trial court instructed the jury that the plaintiff

had the burden to prove both falsity and actual malice by

clear and convincing evidence. (R. 00427). With respect to

the state of mind required to prove actual malice, the tral

court instructed the jury, inter alia, that "[a] deliberate

fabrication or alteration of a statement or publication may

equate with knowledge of its falsity if the jury finds that the

alteration materially changed the meaning conveyed by the

statements." (R. 00466). The jury was given special verdict

forms requiring the jury to make findings on each element of

defamation. These special verdict forms also asked the jury

to determine if falsity and actual malice had been proven by

clear and convincing evidence.

The jury returned a verdict specifically finding as

follows:

THE COURT: Hand up the verdict, please,

sir. All right, sir. To the question of whether

or not the jury finds that the plaintiff has

proven by a preponderance of the evidence

that the broadcasts in question were

defamatory, the answer of the jury is yes; to

the question of whether or not the jury has

unanimously found that the plaintiffs have

proven by clear and convincing evidence that

the broadcasts complained of by the plaintiff

were false, the answer is yes; to the question

of whether or not the jury has found

unanimously that the plaintiff has proved by

clear and convincing evidence that the

broadcasts were published by the defendants

with actual knowledge of the falsity thereof or

with a reckless disregard for the truth or

falsity thereof, the answer is yes....

(R. 00476).

os Be

The jury found in favor of Senator Peeler and against

both Tedder and Spartan Radiocasting in the amount of

$50,000 in compensatory damages. The jury also returned a

verdict against Spartan Radiocasting, Inc. for $625,000 on the

punitive damages claim.

On December 22, 1992 the trial court denied the

Respondents’ post-trial motions for § judgment

notwithstanding the verdict and for a new trial on the same

grounds that it denied their directed verdict motion. (R.

00006). The trial court also conducted an independent review

of the punitive damages award and concluded that it was

properly supported by the evidence. On December 23, 1992

the trial court accordingly entered judgment on the jury

verdict.

In an astounding decision, the South Carolina Supreme

Court with one justice dissenting reversed the judgment on

grounds Senator Peeler had failed to prove actual malice. In

its opinion, the majority stated that it would conduct a de

novo review of the record only to determine if there was clear

and convincing evidence of malice and would not review the

finding of falsity by this standard. Nonetheless, with respect

to the first broadcast, the majority ruled that Senator Peeler

had failed to provide clear and convincing evidence of falsity

~"Peeler may have proven he did not commit the forgeries,

but he failed to prove by clear and convincing evidence that

Stroupe did not make the accusation." 478 S.E.2d at 284.

Noting that other newspapers had printed quotes from

Stroupe that Peeler's supporters had forged the signatures,

the majority concluded that Peeler “may have practiced

sloppy journalism by referring to Peeler rather than only his

supporters" but "there is no evidence in the record that he did

so with actual malice." Id. at 285.

With respect to the second broadcast, the majority ruled

that Gimball and Hall's testimony —

~~

did not clearly show that Tedder deliberately

misrepresented his interviews with them.

Tedder's comment prior to airing these quotes

may have been ambiguous, but without

additional evidence, we hold that this does not

amount to clear and convincing evidence of

actual malice.

478 S.E.2d at 285. Dissenting, Justice Waller noted that

Tedder's deposition and the testimony of Haynes Mullinax

reveal that Stroupe accused only Peeler’s

supporters, and not Peeler himself, of

involvement in the forgeries... [T]he fact that

Tedder misquoted Stroupe as accusing Peeler

himself of participation in the

forgeries...provide clear and convincing

evidence sufficient to submit the case to the

jury.

478 S.E.2d at 285.

With respect to the second broadcast, Justice Waller

agreed that "it is clear that Tedder edited portions of his

interviews with Gimball and Hall, then spliced them in at

appropriate junctures to convey the impression their

statements implicated Peeler in the forgeries." 478 S.E.2d at

285. He concluded:

As broadcast, the statements of both Gimball

and Hall convey to the listener the impression

they believed Peeler was involved in the

forgeries. This, however, is not the

information reported to Tedder. Moreover,

the information which was given to Tedder is

spliced and reported out of context. In my

opinion, as a whole, the record reflects more

than merely "sloppy jourmalism." In my

on EB ee

Opinion, the actions of appellants in

misquoting Stroupe, and in splicing and editing

the statements of Hall and Gimball,

demonstrate a deliberate attempt to convey

the false impression that people were

questioning Peeler's involvement in the

forgeries. In my opinion, this constitutes an

"extreme departure from the standards of

investigation and reporting ordinarily adhered

to by responsible publishers," so as to provide

clear and convincing evidence of malice.

478 S.E.2d at 286.

REASONS FOR GRANTING THE WRIT

I.

THE MAJORITY'S DECISION WITH

RESPECT TO THE AUGUST 29 BROAD-

CAST IS CONTRARY TO THE DECISIONS

OF THIS COURT BECAUSE ‘THE MAJOR-

ITY MADE A DE NOVO REVIEW OF

FALSITY, APPLIED A CLEAR AND CON-

VINCING EVIDENCE STANDARD TO THE

ISSUE OF FALSITY, AND MADE A FOR-

BIDDEN CREDIBILITY DETERMINATION

IN CONCLUDING THAT NEITHER FALS-

ITY NOR MALICE HAD BEEN PROVEN BY

CLEAR AND CONVINCING EVIDENCE

In Bose Corp. v. Consumers Union, 466 U.S. 485 (1984)

the Court held that, in cases governed by the actual malice

standard fashioned in New York Times Co. v. Sullivan, 376

U.S. 254 (1964), appellate courts are required to exercise

independent judgment to "determine whether the record

establishes actual malice with convincing clarity." Although

ao si

the Court provided some guidance as to the scope of this

review in Harte-Hanks Communications, Inc. _ v.

Connaughton, 491 U.S. 657 (1989), the Court has never

clearly set forth the guidelines which govern this de novo

review. In particular, the Court has never determined the

extent to which a reviewing court in conducting a de novo

malice review may disregard actual or presumed jury findings

on related issues such as falsity, even though the findings

would be unreviewable under the clearly erroneous or

comparable state law standard.

The Peeler majority's decision with respect to the

August 29 broadcast demonstrates the perils created by this

indefinite standard. Although the jury specifically found by

clear and convincing evidence that Stroupe never made the

accusation reported by Tedder, the Peeler majority -

purporting to conduct a de novo review only of actual malice

— actually conducted a de novo review of whether Senator

Peeler had proven that Tedder’s report was false by clear and

convincing evidence. The majority accordingly ruled that

Senator Peeler "failed to prove by clear and convincing

evidence that Stroupe did not make the accusation." This

ruling required the majority to make a de novo review that

went beyond any review ever sanctioned by this Court.

First, this Court has never held that reviewing courts have

free rein to conduct an independent review of whether the

plaintiff proved falsity. In Masson v. New Yorker Magazine,

501 U.S. 496 (1991) the Court recognized that a de novo

review of malice does require some consideration of the issue

of falsity. But the Court indicated that a reviewing court in

an altered quotation case must consider falsity only to the

extent of determining whether the requisite falsity inheres in

the attribution of words to the speaker which he did not

speak. In this case, the falsity at issue clearly was the

attribution by Tedder of words to Stroupe which the jury

found that Stroupe did not speak. The Peeler majority went

mt on

far beyond this limited inquiry and made its own ruling that

the publication had not been proven false.

The Petitioner asserts that the Peeler majority could

disturb the jury's falsity finding only if there was no evidence

which reasonably supported the jury's findings, the South

Carolina counterpart to the federal clearly erroneous standard

of review. Townes Associates Ltd. v. City of Greenville, 266

S.C. 81, 221 S.E.2d 773, 775 (1976). And because the

evidence in fact overwhelmingly supported the jury's finding

on this point, the Peeler majority was bound by this finding.

Although the Court has never expressly ruled that a reviewing

court may not disturb falsity findings supported by

substantial evidence, the Petitioner believes that this is the

tule indicated by the decisions in Bose, Masson, and Harte-

Hanks Communications. This rule also best balances the

tension between the deference normally afforded the jury and

a reviewing court's duty to "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, supra, 466 U.S. at 511.

Second, the Peeler majority compounded the problem

created by its review of the falsity issue by applying the

wrong standard of proof to the falsity determination.

Although the jury in this case was instructed to find and did

find that falsity had been proven by clear and convincing

evidence, the Court has never required falsity to be proven by

clear and convincing evidence. See Harte-Hanks

Communications, Inc. v. Connaughton, supra (affirming a

jury verdict where the jury was instructed to find falsity by

the preponderance of the evidence but declining to pass on

whether this is the correct standard). The Petitioner believes

that the preponderance standard governs the falsity

determination and a reviewing court should not be able to

aes

=

reverse a jury verdict because the court finds clear and

convincing evidence of falsity lacking.

Third, in order to disturb the jury's specific finding that

Stroupe never made the accusation, the Peeler majority

improperly made a crucial credibility determination. It must

be remembered that eyewitness Haynes Mullinax expressly

testified that Stroupe never made the accusation; that Tedder

admitted no one else told him Peeler was suspected in

involvement in the forgeries; and that none of the four

newspapers covering the controversy reported that Stroupe

had accused Peeler. The only evidence that Stroupe did make

the accusation was Tedder's trial testimony that Stroupe

purportedly told him off-camera that Peeler or his supporters

committed the forgeries. But Senator Peeler impeached this

self-serving testimony by showing that Tedder in his

deposition had told a different story:

Q. In any event, under oath two years ago

you didn't indicate that Mr. Stroupe had

accused Senator Peeler directly, did you?

A. That's correct, but I also have indicated

that I didn't have a recolléction of every

detail.

(R. 00155). Faced with his conflicting deposition testimony,

Tedder attempted to explain this discrepancy on grounds that

he had been unable to recall whether Stroupe made the

accusation at the deposition but that he somehow had

"remembered" the accusation given time to think about it.

The members of the jury — who observed Tedder's

demeanor as he attempted to explain the direct contradiction

between his trial and deposition testimony — found this

explanation uncredible and effectively found by clear and

convincing evidence that Tedder's assertion that Stroupe had

accused Peeler was false. But the Peeler majority — by

att

stating that Peeler never proved Stroupe did not make the

accusation — could only have reached this conclusion by

accepting Tedder’s trial testimony as credible and rejecting the

jury's determination that he was not credible.

All prior decisions of this Court indicate that a reviewing

court may not reject a jury's credibility determination unless

clearly erroneous. In Bose, supra, 466 U.S. at 499, 500 and

Harte Hanks the Court stated that credibility determinations

are reviewed under the clearly erroneous standard. See also

Harte-Hanks Communications, Inc. v. Connaughton, supra,

491 U.S. at 694 (White, J., concurring) ("[i]n my view, in

cases like this the historical facts - e.g., who did what to

whom and when - are reviewable only under the clearly

erroneous standard mandated by Rule 52. Credibility

determinations fall in this category"); Reuber v. Food

Chemical News, Inc., 925 F.2d 703, 714 (4th Cir.), cert.

denied, 501 U.S. 1212 (1991)"[w]e are mindful...that this

standard of review does not transfer an appellate court into a

super-jury, nor does it give us free reign to revisit credibility

determinations or to redetermine findings of historical fact");

Newton v. National Broadcasting Co., 930 F.2d 662, 670-671

(9th Cir. 1990), cert. denied, 502 U.S. 866 (1991)("[t]he

presumption of correctness carries its maximum force when

we review findings of fact that turn or credibility

determinations because of the factfinder’s ‘unique

Opportunity to observe the demeanor of the witnesses...’ In

sum, we read Bose and Harte-Hanks as creating a credibility

exception to the New York Times rule of independent

review"). Because the jury's rejection of Tedder’s self-serving

explanation was certainly not clearly erroneous given the

other evidence presented, the Peeler majority was bound by

this finding.

Finally, after engaging in the foregoing unrestrained

review of the issue of falsity, the Peeler majority improperly

used its finding that falsity had not been proved as the basis

ee

for concluding that there was no clear and convincing evidence

of actual malice. If the Peeler majority had accepted the

jury's finding on falsity as it was required to do, then — as

discussed in more detail infra — the Peeler majority could have

only concluded under Masson that Tedder made the false

statement with actual malice. By attributing words to

Stroupe that Stroupe never said, Tedder materially altered the

meaning of Stroupe's words and, therefore, this defamatory

publication was made with actual malice. Although the

Peeler majority alternatively suggested that Tedder may have

been guilty simply of sloppy journalism —i.e., suggesting that

he simply made a mistake as to the scope of the accusation

made by Stroupe — there was no evidence to support this

notion because Tedder never testified that he made a mistake

and in fact insisted that Stroupe did make the accusation.

As the foregoing discussion demonstrates, the Peeler

majority used the constitutionally mandated de novo review

of malice to reach and destroy jury findings that do not

implicate First Amendment values. This goes too far and the

Court should grant this petition to correct these

constitutional errors and to provide more precise guidelines as

how the de novo review should be conducted.

Il.

THE MAJORITY'S DECISION IS

CONTRARY TO THIS COURT'S

DECISION IN MASSON V. NEW YORKER

MAGAZINE AND EFFECTIVELY IMPOSES A

GREATER BURDEN ON PUBLIC FIGURE

PLAINTIFFS THAN ANY PRIOR UNITED

STATES SUPREME COURT DECISION

In Masson v. New Yorker Magazine, 501 U.S. 496

(1991) the Court considered the circumstances in which a

reporter's attribution of words to a public figure which the

public figure did not speak provided evidence sufficient to

a

reach the jury on the question of actual malice. The Court

rejected the notion that any alteration of a verbatim quotation

constituted the knowledge of falsity required to prove actual

malice. The Court explained that minor changes to correct

grammar and syntax did not show malice and that even a

deliberate alteration of words did not necessarily show

malice. The Court concluded, however, that

a deliberate alteration of the words uttered by

a plaintiff does not equate with knowledge of

falsity for purposes of ..[New York

Times...and Gertz] unless the alteration results

in a material change in the meaning conveyed

by the statement. The use of quotations to

attribute words not in fact spoken bears in a

most important way to that inquiry, but it is

not dispositive in every case.

501 U.S. at 517. Stating the Masson standard conversely, a

deliberate alteration of the words uttered by a speaker which

results in a material change in meaning does equate with

knowledge of falsity.

With respect to the first broadcast, Senator Peeler

presented clear and convincing evidence that Stroupe never

accused him of involvement in the forgeries, that Stroupe

only accused Peelers supporters of involvement in the

forgeries, that Tedder nonetheless reported that Stroupe did

accuse Peeler, and that Tedder's attribution of words to

Stroupe which he did not say materially altered the meaning

of what he did say. With respect to the second broadcast,

Senator Peeler presented undisputed evidence that Tedder

deliberately altered the intended meaning of the words spoken

by Gimball and Hall by omitting from the newscast the

questions he actually asked them and instead by inserting

their answers following his comment that Peeler would be

hard pressed to convince people that he was not involved in

on

the forgeries. In other words, Tedder in effect changed the

questions to which they were responding so that it appeared

that they were answering a different question — viz., whether

Senator Peeler was involved in the forgeries. The evidence

was also undisputed that the splicing caused a material change

in the meaning of the answers intended by Hall and Gimball.

Hall and Gimball and other witnesses all testified that they

understood the broadcast to imply that Hall and Gimball

believed Senator Peeler was involved with forgeries. This

change rendered their answers — which in the context reported

to Tedder had no defamatory implication — defamatory as to

Senator Peeler in the context broadcasted to the public. As

Respondents’ own news director admitted, Tedder fabricated

this defamatory meaning by his tape splicing.

The trial court expressly instructed the jury that "[a]

deliberate fabrication or alteration of a statement or

publication may equate with knowledge of its falsity if the

jury finds that the alteration materially changed the meaning

conveyed by the statements." (R. 00466). The jury returned

a verdict for Senator Peeler finding with respect to both

broadcasts that malice and falsity had been proven by clear

and convincing evidence. In light of the instruction given, the

jury necessarily found that Tedder deliberately fabricated or

altered first Stroupe's and then Gimball's and Hall's

statements so as to materially change their meaning and,

therefore, that Tedder had knowledge of the falsity. And

knowledge of falsity is actual malice.

Assuming arguendo, however, that Tedder somehow

lacked actual knowledge that neither Stroupe, Gimball, nor

Hall had implicated Senator Peeler in the forgeries, the record

is replete with evidence that Tedder acted with "reckless

disregard" in publishing the statements. Reckless disregard is

shown where “the defendant must have made the false

publication with a ‘high degree of awareness of...probable

falsity...,,or must have ‘entertained serious doubts as to the

a

Red

4

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truth of his publication..." Harte-Hanks Communications v.

Connaughton, 491 U.S. 657, 667 (1989). Because it is

undisputed that Tedder conducted the interviews of Stroupe,

Gimball, and Hall and prepared the reports broadcasts to the

public, he certainly must have had a high degree of awareness

that his reports — which contained statements that the

interviewees never made — were untrue. See St Amant v.

Thompson, 390 U.S. 727, 732 (1968) ("[p]rofessions of good

faith will be unlikely to be persuasive...where a story is

fabricated by the defendant...[or] is the product of his

imagination").

Although the jury, the trial judge, and Justice Waller all

followed the Masson opinion to the letter and agreed that the

Respondents had acted with malice under this standard, the

South Carolina Supreme Court majority disagreed. Without

applying the Masson standard, the majority refused to accept

the jury's finding that Tedder had fabricated the Stroupe

accusation and stated that Gimball and Hall's testimony did

not show that Tedder deliberately misrepresented his

interviews with them.

Finally, the Peeler majority- ignored additional

circumstantial evidence of malice which supported the jury's

finding. First, the Court has recognized that actual malice

may be shown by evidence establishing that a news story has

been fabricated or is a product of the reporter's imagination.

St. Amant v. Thompson, supra, 390 U.S. 732; see also

McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501,

1512 (D.C. Cir. 1996)("[t]he Supreme Court in St Amant

identified three types of circumstantial evidence that would

likely support a finding of actual malice: They are evidence

establishing that the story was ...'fabricated"). In fabrication

cases, of course, the fabricator normally has actual knowledge

that the publication is false. The Peeler majority simply

ignored the evidence — including news director Harvey Cox’s

explicit acknowledgement that fabrication had occurred -

<. -

showing that Tedder fabricated the false publications and that

the very act of fabrication provided an inference of malice.

Second, in Harte-Hanks Communications, Inc. vy.

Connaughton, supra, the Court recognized that evidence of a

motive for publishing defamatory matter is circumstantial

evidence of actual malice. Here Senator Peeler presented

evidence and argued to the jury that Tedder was motivated to

fabricate the stories to scoop the competition. It is obviously

a major news story when a candidate accuses his opponent of

a crime. Third, the missing air check — which would have

shown an anchor lead-in proclaiming “Peeler accused of

forgery” — provided further circumstantial evidence of actual

malice as the jury could have inferred that Tedder erased the

tape in an effort to destroy evidence of the defamatory

broadcast.

In refusing to follow Masson in a case where the jury

found a reporter fabricated a defamatory news story, the

South Carolina Supreme Court has imposed an impossibly

high standard on public figure plaintiffs seeking to remedy

"made up" stories broadcast by television reporters. If the

evidence presented by Senator Peeler did not establish malice,

the Petitioner submits that no evidence short of an explicit

admission by the reporter that he knew the story was false

can survive the South Carolina Supreme Court's de novo

review of actual malice. This imposes a greater burden in

proving malice on public figures in South Carolina than any

prior decision of the Supreme Court has imposed.

A case of fabrication by a television reporter is unlike

any other kind of defamation case insofar as the issue of

actual malice is concerned. It does not implicate the concern

of New York Times Co. v. Sullivan and its progeny that the

media should be able to publish what “someone else said”

without liability, unless the media knows the statement is

false or acts with reckless disregard as to the truth or falsity

of the statement. If the reporter makes up a defamatory

LNA Li ERA A 6 Be

a, ome

statement and then broadcasts it, he has to know that it is

untrue or at least that he has no basis for knowning whether

the made up statement is true.

CONCLUSION

For the reasons stated, the Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

Clarence S. Norris

Counsel of Record

Counsel for Petitioner

APPENDIX

APPENDIX A

ok Pen

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Harvey S. Peeler, Respondent,

v.

Spartan Radiocasting, Inc.,

and Allan Ray Tedder, Appellants.

Appeal from Spartanburg County

J. Derham Cole, Judge

Opinion No. 24531

Heard April 16, 1996 — Filed November 18, 1996

REVERSED

William U. Gunn and Perry D. Boulier, both of Holcombe,

Bomar, Cothran, & Gunn, P.A., of Spartanburg; Bruce W.

Sanford, Henry S. Hoberman, and Stephanie S. Abrutyn, all

of Baker & Hostetler, of Washington, D.C., for appellants.

Robert G. McCulloch, Jr., and J. Edward Bell, III, both of

Bell & Bagley, of Sumter, for respondent.

Jay Bender, of Baker, Barwick, Ravenel & Bender, of

Columbia, for amicus curiae, South Carolina Press’

Association.

PER CURIAM: This is an appeal of a defamation case. The

jury awarded respondent Harvey S. Peeler $50,000.00 actual

damages and $625,000.00 punitive damages. We reverse.

ae Lo

PEELER, v. SPARTAN RADIOCASTING, INC., et al.

FACTS

On August 29 and September 1, 1988, appellants

broadcast two television news stories on channel WSPA'

about forgeries of names on a petition to place J.R. Stroupe’s

name on the ballot for election to the South Carolina Senate.

The incumbent, Peeler, brought this libel action alleging these

news stories conveyed that Peeler had a role in the forgeries

and the public believed he was guilty of forgery? The

following is a transcript of the August 29th broadcast:

Ray Tedder: These SLED agents are pouring

over petitions that have been filed by J.R.

Stroupe, a former Cherokee County

Councilman who wants to run for the State

Senate. The State Election Commission says

that twenty people have signed affidavits

saying that they didn’t sign the petitions; that

someone forged their signatures. These agents

are trying to find out if there are more. At

Stroupe’s Service Station near Thickety

Mountain, supporters are claiming it’s just

dirty politics.

J.R. Stroupe: Everything was fine until |

asked to see them.

Tedder: Stroupe says he has hundreds of

people working for him trying to get enough

signatures to get him on the ballot in

November, opposite incumbent State Senator

WSPA is owned by appellant Spartan Broadcasting, Inc. (Spartan)

Stroupe eventually pled guilty to forgery.

ay om

PEELER, v. SPARTAN RADIOCASTING, INC., et al.

Harvey Peeler. He says he doesn’t know who

might have forged the signatures, but he claims

Peeler or his supporters engineered this

problem. Peeler says that’s nonsense.

Harvey Peeler: The first I heard about it, Ray,

was yesterday afternoon. It took me totally

by surprise.

Tedder: For election officials, finding out who

did it is not as important as finding out how

many signatures are valid. They have to

certify the petition by September the first. In

Gaffney, Ray Tedder, TV-7, Eyewitness

News.

The following is a transcript of the September Ist

broadcast:

Tedder: According to South Carolina Election

Officials, twenty people claim their names

were forged on these petitions: That helped

keep J.R. Stroupe twenty-seven away from

having enough to get on the ballot opposite

incumbent State Senator Harvey Peeler. These

SLED agents sorting the petitions are

continuing to investigate hoping to find out

who committed the crime. J.R. Stroupe is

conducting his own investigation. Stroupe

wants to prove he had nothing to do with the

forgeries, and the supporters who gathered at

his service station believe someone in the

Peeler camp set Stroupe up. Peeler says he

had nothing *o do with it. But Peeler wil! be

hard pressed to convince a lot of people.

SOAR bh aH

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PEELER, v. SPARTAN RADIOCASTING, INC., et al.

They believe it’s just Cherokee County

politics as usual.

John Gimball: It wouldn’t surprise me. I

mean, there’s so much things that go on that

people won’t say nothing about.

Arthur Hall: My opinion is that Harvey’s got

something to do with it.

Tedder: Stroupe says he’s not decided

whether to wage a write-in campaign, but his

supporters say they will carry on one with or

without his active participation. In Cherokee

County, Ray Tedder, TV-7, Eyewitness

News.

Peeler alleges Tedder misquoted Stroupe in the August

29th story by stating Stroupe had accused Peeler of forgery.

In the second story, Peeler alleges Tedder misquoted Gimball

and Hall.

The jury returned a verdict of $50,000 actual damages

against both appellants and $625,000 punitive damages

against Spartan. The trial judge denied appellant’s motions

for a new trial nisi new trial absolute, and judgment

notwithstanding the verdict (JNOV).

DISCUSSION

To recover damages for defamation, a public figure must

prove by clear and convincing evidence that the statements

were made with actual malice, that is, with knowledge that it

was false or with reckless disregard as to its truth or falsity.

Harte-Hanks Communications, Inc. v. Connaughton, 491

~~

PEELER, v. SPARTAN RADIOCASTING, INC., et al.

U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Bose

Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 80

L.Ed.2d 502 (1984); New York Times Co. v. Sullivan, 376

U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

Appellants contend we are to conduct an independent de

novo review of the entire record to determine if there is clear

and convincing evidence to support findings of actual malice

and falsity.‘ We agree our scope of review on the issue of

actual malice is a de novo review to determine if there is clear

and convincing evidence. However, we do not agree this is

the proper scope of review on the issue of falsity.

In Bose, the United States Supreme Court held there

must be an independent review by the appellate court to

determine if the evidence in the record supports a finding of

actual malice by clear and convincing evidence. In Harte-

Hanks, supra, the Supreme Court declined to address

whether this mandatory review of actual malice should also

be applied to the issue of falsity. Cf. Locricchio v. Evening

News Ass'n, 438 Mich. 84, 476 N.W.2d 112 (1991)in

private figure plaintiff case independent review of falsity is

required as logical corollary of independent review of actual

> Peeler conceded below that he is a public official and therefore must

prove actual malice by clear and convincing evidence under New York

Times v. Sullivan.

“Clear and convincing evidence is that degree of proof which will

produce in the mind of the trier of facts a firm belief as to the

allegations sought to be established. Such measure of proof is

intermediate, more than a mere preponderance but less than is required

for proof beyond a reasonable doubt, it does not mean clear and

unequivocal.” Middleton v. Johnson, 221 Va. 797, 273 S.E.2d 800,

802. Accord Clark v. Cotton, 207 Ga. App. 883, 429 S.E.2d 291

(1993).

2

a

}

=

PEELER, v. SPARTAN RADIOCASTING, INC., et al.

malice required in public figure case). Accordingly, we are

required to conduct an independent de novo review of the

record only on the issue of actual malice.°

Actual malice is a subjective standard testing the

publisher’s good faith belief in the truth of his or her

statements. The publisher must have entertained serious

doubts as to the truth of his publication. St Amant vy.

Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed2d 262

(1968). To establish recklessness, there must be an extreme

departure from the standards of investigation and reporting

ordinarily adhered to by responsible publishers. Curtis Pub.

Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L-Ed.2d 1094

(1967). “Mere negligence does not suffice.” Masson v. New

Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 2429,

115 L.Ed.2d 447 (1991).

As to the August 29th newscast, Peeler may have

proven he did not commit the forgeries, but he failed to prove

by clear and convincing evidence that Stroupe did not make

the accusation. Peeler presented Haynes Mullinax who

testified he was present when Tedder spoke with Stroupe for

the interview and Stroupe accused Peeler’s supporters but

not Peeler. Peeler also offered as evidence of actual malice

that no other newspaper or television station had reported

that Stroupe. had accused Peeler when this story was aired.

However, several newspapers did print quotes from Stroupe

stating Peeler’s supporters had forged the signatures. “A

subjective awareness of probable falsity cannot be

b

At oral argument, appellants in essence stated if we declined to adopt

a de nova review on the evidence of falsity, the focus of this appeal

should be on whether there is clear and convincing evidence of actual

malice.

a

PEELER, v. SPARTAN RADIOCASTING, INC., et al.

demonstrated under the standard of ‘convincing clarity’ by

evidence showing that the publisher and the plaintiff

disagreed with respect to their perceptions of events which

they both observed.” McMurray v. Howard Publications,

Inc., 612 P.2d 14 (Wyo. 1980). At best, Tedder may have

practiced sloppy journalism by referring to Peeler rather than

only his supporters, however, there is no evidence in the

record that he did so with actual malice.

As to the September Ist newscast, Peeler presented the

testimony of Gimball and Hall, the two men interviewed by

Tedder. The testimony of these two men does not clearly

show that Tedder deliberately misrepresented his interviews

with them. Tedder’s comment prior to airing these quotes

may have been ambiguous, but without additional evidence,

we hold this does not amount to clear and convincing

evidence of actual malice.

Peeler also offered as evidence of actual malice the

erasure of the tape containing the newscasts. This is not

evidence of actual malice since there was no evidence the

erasure was anything other than a routine practice. Strange v.

Cox Enterprises, Inc., 211 Ga. App. 731, 440 S.E.2d 503

(1994)(destruction of notes is not evidence of actual malice).

Pursuant to a de novo review of the record, we hold

there is not clear and convincing evidence to support a finding

of actual malice. We need not address appellants’ remaining

issue.

REVERSED.

/s/_ Ernest A. Finney, Jr. C3

/s/_ James E. Moore A.J.

/s/_ George T. Gregory, Jr. A.A.J.

/s/ Thomas C. Huff A.A.J.

Waller, A.J., dissenting in separate opinion.

i

3

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PEELER, v. SPARTAN RADIOCASTING, INC., et al.

WALLER, A.J.: (Dissenting). I respectfully dissent. In my

opinion, a de novo review of the record demonstrates clear

and convincing evidence of malice.

In the August 29th broadcast, Tedder stated, with respect to

the forged signatures, that Stroupe “Claims Peeler or his

supporters engineered this problem.” However, both

Tedder’s deposition, and the testimony of Haynes Mullinax,

who was present when Stroupe made the statement, reveal

that Stroupe accused only Peeler’s supporters, and not Peeler

himself, of involvement in the forgeries. In my opinion, the

fact that Tedder misquoted Stroupe as accusing Peeler himself

of participation in the forgeries is evidence of actual malice

which, when coupled with the misrepresentations of the

September Ist broadcast, provide clear and convincing

evidence sufficient to submit the case to the jury.

In regard to the September Ist broadcast, it is clear that

Tedder edited portions of his interviews with Gimball and

Hall, then spliced them in at appropriate junctures to convey

the impression their statements implicated Peeler in the

forgeries. For example, Tedder says;

Stroupe wants to prove he had nothing to do

with the forgeries, and the supporters who

gathered at his service station believe someone

in the Peeler camp set Stroupe up. Peeler says

he had nothing to do with it. But Peeler will

be hard pressed to convince a lot of people.

They believe it’s just Cherokee County

politics as usual.

-A9-

PEELER, v. SPARTAN RADIOCASTING, INC., et al.

In response to these statements, Gimball and Hall are

immediately quoted, stating:

Gimball: It wouldn’t surprise me. I mean

there’s so much things that go on that people

won’t say nothing about.

Hall: My opinion is that Harvey’s [Peeler]

got something to do with it.

As reported and spliced into the broadcast, these statements

clearly imply that Hall and Gimball believed Peeler had

something to do with the forgeries. However, both Gimball

and Hall testified that they specifically told Tedder they did

not think Peeler was involved with the forgeries. Gimball

testified that his statement was, in reality, a response to an

inquiry about general politics and whether or not some

politicians may do things which are not nght to win an

election. It was not, he testified, a statement concerning

Peeler or his alleged involvement with the forgeries.

Similarly, Hall testified that his statement was made in

response to a question as to whether or not Peeler was

involved in the investigation of the forgeries; it was not

intended to imply that he believed Peeler had anything to do

with the forgeries.

As broadcast, the statements of both Gimball and Hall

convey to the listener the impression they believed Peeler

was involved in the forgeries. This, however, is not the

information reported to Tedder. Moreover, the information

which was given to Tedder is spliced and reported out of

context. In my opinion, as a whole, the record reflects more

-A10-

PEELER, v. SPARTAN RADIOCASTING, INC., et al.

than mere “sloppy journalism.” In my opinion, the actions

of appellants in misquoting Stroupe, and in splicing and

editing the statements of Hall and Gimball, demonstrate a

deliberate attempt to convey the false impression that people

were questioning Peeler’s involvement in the forgeries. In my

opinion, this constitutes an “extreme departure from the

standards of investigation and reporting ordinarily adhered to

by responsible publishers,” so as to provide clear and

convincing evidence of malice. I would affirm the trial court’s

denial of the motion for JNOV:!

Further, I would affirm the punitive damage award. In my opinion,

the verdict is neither inconsistent nor violative of Spartan’s due

process rights.

“aie ebb

APPENDIX B

wo BI

The Supreme Court of South Carolina

CLYDE N. DAVIS, JR. P.O. BOX 11330

CLERK OF COURT COLUMBIA, S.C. 29211

BRENDA F. SHEALY (803) 734-1080

DEPUTY CLERK

January 13, 1997

J. Edward Bell, III, Esquire

Eugene C. Fulton, Jr. Esquire

Bell & Moore

P.O. Box 460

Sumter, SC 29150

RE: Harvey S. Peeler v. Spartan Radiocasting, Inc. 90-CP-

42-1890

Dear Counsel:

The Court has refused your Petition for Rehearing in the

above case in the followig Order:

“Petition for rehearing is denied.

/s/_Ernest A. Finney, Jr. CJ

/s/_ James E. Moore AJ.

/s/_ George T. Gregory, Jr. A.A.J.

/s/_ Thomas C. Huff A.A.J.

I would grant rehearing.

/s/_ John H. Waller, Jr. AJ

January 13, 1997.”

~a2

J. Edward Bell, IIT, Esquire

Eugene C. Fulton, Jr. Esquire

January 13, 1997

Page 2

The remittitur in this matter is today being forwarded to the

Clerk of Court for Spartanburg County.

Very truly yours,

CLERK

CND, Jr./djp

cc: Bruce W. Sanford, Esquire

Henry S. Hoberman, Esquire

Stephanie S. Abruthin, Esquire

William U. Gunn, Esquire

Perry D. Boulier, Esquire

Jay Bender, Esquire

APPENDIX C

eg

STATE OF SOUTH CAROLINA)

) IN THE COURT OF

COUNTY OF SPARTANBURG) COMMON PLEAS

Harvey S. Peeler, )

Plaintiff, )

)

vs. )

) ORDER

Spartan Radiocasting, Inc., )

and Alan Ray Tedder, ) 90-CP-42-1890

)

Defendent )

Defendants have filed a Motion for Summary Judgment

in this case. A hearing on the motion was held before me on

June 5, 1992. After reviewing the arguments by counsel as

well as the memoranda, affidavits and case law submitted and

considering them in a light most favorable to the Plaintiff I

hereby deny the Motion for Summary Judgment.

This is an action for Defamation in which Plaintiff

contends that two (2) broadcasts aired by the Defendants on

August 28, 1988 and September 1, 1988 contained statements

that were false and defamatory. Defendants primarily

focused on two (2) grounds in their argument for Summary

Judgment.

First, Defendants assert Plaintiff has shown no falsity of

the statements contained in the two (2) broadcasts in

question. Defendants rationale in essence is that Ray Tedder

made remarks to the effect that there was a belief among

certain individuals in Gaffney, SC that Mr. Peeler had

something to do with the forged signatures on petitions.

Defendants assert that these statements are true, because

what they state is that there is “a belief’ among Gaffney

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residents that Mr. Peeler was involved with the forgeries of

signatures on the petitions. At issue, the Defendants

contend, is not whether it is true that Mr. Peeler was

involved but rather whether there actually was a “belief”

among certain Gaffney residents that Mr. Peeler was

involved. The truth of this belief, Defendants contend, is

evidenced by numerous newspaper articles discussing such

beliefs and which were printed before the broadcasts were

aired. Secondly, Defendants contend Plaintiff has not shown

any evidence of actual malice which is required under New

York Times Co. v. Sullivan, 376 U.S. 254 (19 ) since Mr.

Peeler is a State Senator and thus, a public official.

Plaintiff argues that Defendants’ first ground is incorrect

and not applicable under the facts of this case and the tuling

of Masson v. New Yorker Magazine, Inc., 117 LE. 2d 447

(1991). Plaintiff agrees that there is a principle in such cases

krown as the “rational Interpretation.” Such principle would

protect a reporter and broadcaster from a defamation suit if

the reporter’s publication of other individual’s notations were

substantially representative of the actual quotations.

However, Plaintiff contends the protection just mentioned

does not extend to situations where the reporter materially

alters or amends the quotations of others. Plaintiff produced

affidavits of two (2) individuals whose quotes were used by

Defendant Tedder in the second broadcast. Plaintiff admits

the quotes were substantially accurate representations of the

individual’s comments, but alleges the quotes were to

questions other than the one used in the broadcast. More

specifically, Plaintiff asserts when actually interviewed the

individuals were asked if they believed Mr. Peeler had

anything to do with calling for the SLED investigation. One

individual replied “It wouldn’t surprise me. I mean, there’s

so much things that go on that people won't say nothing

about.” The second individual responded “My opinion’s

that Harvey’s got something to do with it.” However, when

these quotes were aired they were used as answers to a

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question of whether Mr. Peeler was guilty of or connected to

the crimes of forgery involved in the signatures on the

petition. Plaintiff claims that using the quotations of

individuals to a specific question as the answer or response to

another question is a material alteration and results in a

falsification. Moreover, Plaintiff asserts that this allegedly

deliberate and material alteration changes the meaning of the

quotation thereby creating a deliberate falsification and thus

proves actual malice. In support of this contention Plaintiff

relies upon the following language from Masson, supra:

We conclude that a deliberate alteration of the

words uttered by a Plaintiff does not equate

with knowledge of falsity for purposes of New

York Times Co. v. Sullivan,... unless the

alteration results in a material change in the

meaning conveyed by the statement. The use

of quotations to attribute words not in fact

spoken bears in a most important way on that

inquiry, but it is not dispositive in every case.

Deliberate or reckless falsification that

comprises actual malice turns upon words and

punctuation only because words and

punctuation express meaning. Meaning is the

life of language. And, for the reasons we have

given, quotations may be a devastating

instrument for conveying false meaning.

Id. at 473.

Plaintiff's argument essentially is that the meaning

conveyed by the quotations is materially altered when they

are used as answers to questions other than the onginal

question to which they were given.

até.

I believe Plaintiff has presented facts and arguments

which present question of material fact, and therefore,

Summary Judgment is DENIED.

IT IS SO ORDERED.

June 9, 1992 JAMES B. STEPHEN, JUDGE

SEVENTH JUDICIAL CIRCUIT

APPENDIX D

me | ee

STATE OF SOUTH CAROLINA)

) IN THE COURT OF

COUNTY OF SPARTANBURG) COMMON PLEAS

Harvey S. Peeler, )

Plaintiff, )

)

VS. )

) ORDER

Spartan Radiocasting, Inc., )

and Alan Ray Tedder, ) 90-CP-42-1890

| )

Defendent )

This matter comes before the court on post-trial motions

of the defendants wherein the defendants move for a new

trial, a new trial absolute pursuant to Rule 59(a) of the South

Carolina Rules of Civil Procedure, a new trial nisi, and a post-

trial review of the punitive damage award.

This suit started as a result of the defendants

broadcasting two television articles on August 29" and

Septemberl, 1988. The plaintiff claimed that he was libeled

when the broadcast indicated to the public that he had

committed the crime of forgery in connection with certain

petitions filed by another candidate who was attempting to

get on the General Election Ballot of November, 1988, in

order to oppose the Plaintiff. This action was tried by the

court and a jury commencing on June 15, 1992. Opening

statements and testimony lasted three days. On June 19,

1992, final arguments were made and the case was submitted

to the jury by way of a special interrogatory verdict form.

The jury returned a verdict awarding the plaintiff $50,000.00

actual damages as to both defendants and $625,000.00

punitive damages against Spartan Radiocasting, Inc.

a.

After the jury verdict was returned, the defendants

moved for judgment notwithstanding verdict on the same

grounds raised at the directed verdict stage. Additionally and

in the alternative, the defendants moved for a new trial or for

a new trial nisi on the grounds that the jury verdict was

contrary to the fair preponderance of the evidence and that

the jury verdict was so grossly excessive in that it was the

result of arbitrariness, capriciousness, passion, prejudice or

other consideration not found in the evidence.

This court has considered the defendants’ motion for

judgment notwithstanding the verdict on the same grounds

raised by the defendants at the directed verdict stage. This

court finds that the defendants’ motion for judgment

notwithstanding the verdict should be denied.

The defendants further move this court for a new trial or

in the alternative a new trial nisi. This court finds that “under

the thirteenth juror doctrine” that the evidence in this case

justifies the verdict which was rendered. This court finds

that there is sufficient evidence from which a jury could have

found by clear and convincing proof that the defendants were

aware of the probable falsity of the -publications and that

they entertained serious doubts as to the truth of those

publications. There also exists sufficient evidence from which

a jury could have found damages suffered by plaintiff as a

result of the defamatory publications.

The defendants further move for a new trial nisi and asks

this court to throw out the reject the verdict as being

excessive. The defendants urge this court to find that the

verdict is grossly excessive and due to passion and prejudice

rather than reason.

This court finds after a complete review of the evidence

that the verdict is not excessive. This court is not shocked by

the amount of the verdict and finds it to be fair and reasonable

eth Ha

and supported by the evidence. This court finds that the

verdict was not unduly liberal and further finds that the

defendants’ motion for a new trial nisi should be denied.

The defendants further move for a new trial upon the

ground that the jury returned an inconsistent and illogical

verdict. In this regard, the defendants contend that the jury

verdict is inconsistent and illogical because the jury verdict is

inconsistent and illogical because the jury assessed punitive

damages against the defendant Spartan Radiocasting, Inc. but

did not assess punitive damages against the defendant Allan

Ray Tedder.

Under South Carolina law, a new trial may be ordered on

grounds of inconsistent jury verdicts only where the verdicts

are irreconcilably inconsistent. Indeed, the South Carolina

Supreme Court has emphasized that “[i]t is the duty of the

court to sustain verdicts when a logical reason for reconciling

them can be found.” Rhodes v. Winn-Dixie 249 §.C. 526, 155

S.E.2d 308, 310 (1967). Accord Haskins v. Fairfield Electric

Co-op., 283 S.C. 229, 321 S.E.2d 185, 190 (Ct. App. 1984).

With respect to punitive damages, the South Carolina

Supreme Court has repeatedly stated that the decision of

whether to award punitive damages and their amount are

“particularly within the judgment and discretion of the jury,

subject to supervisory power of the trial judge over jury

verdicts.” Hicks v. Herring, 246 S.C. 429, 144 S.E.2d 151,

154 (1965); Accord Gamble v. Stevenson, S.C. ;

406 S.E.2d 350 (1991). Thus the Defendants face a heavy

burden in obtaining a new trial on grounds of the purportedly

inconsistent verdicts on the -punitive damages claim. If a

logical reason for sustaining the verdicts can be identified, the

verdicts must be upheld as a proper exercise of jury

discretion.

The verdicts returned by the jury in the instant case can

be reconciled. At the close of evidence, the Court properly

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instructed the jury that it could consider the various factors

set forth in Gamble v. Stevenson, supra, in deciding whether

to award punitive damages. In Gamble the court stated:

to ensure that a punitive damage award is

proper, the trial court shall conduct a post trial

review and may consider the following: (1)

defendant’s degree of culpability; (2) duration

of the conduct; (3) defendant’s aware new or

concealment; (4) the existence of similar past

conduct; (5) likelihood the award will deter the

defendant or others from like conduct; (6)

whether the award is reasonably related to the

harm likely to result from such conduct; (7)

defendant’s ability to pay; and, finally (8) as

noted in Haslip', “other factors” deemed

appropriate.

Gamble v. Stevenson, supra, 406 S.E.2d at 354.

In deciding whether to award punitive damages, the jury

was instructed to assess each of the foregoing factors against

each Defendant. Although in case where the master’s liability

is based on respondent superior some of the foregoing factors

may be identical as to both the master and the servant. This

is certainly not true as to all of the factors. Most notably,

the ability of defendant to pay punitive damages usually will

vary where multiple defendants are involved. In the instant

case, the record reflects evidence showing that Spartan

Radiocasting, Inc. had a net worth of some Eighteen Million

($18,000.000) Dollars. On the other hand, there is absolutely

no evidence in the record showing the net worth or ability to

pay of Mr. Tedder. The jury quite properly could have

assumed that Mr. Tedder lacked the substantial assets of his

former corporate employer and could have substantial assets

Pacific Mutual Life Insurance Co. v. Haslip, 111 S.Ct. 1032 (1991).

ates.

of his former corporate employer and could have decided in

its discretion not to award punitive damages against Mr.

Tedder because of the lack of evidence as to his ability to

pay.

The jury was also instructed that punitive damages are

awarded, inter alia, to deter the defendant from engaging in

similar wrongful conduct in the future. See eg., Mattison v.

Dallas Carrier Corp., 947 F.2d 95 (4" Cir. 1991) (“[t]he law

of South Carolina permits jury to award punitive damages to

punish, deter, and vindicate the rights of the plaintiff

whenever the conduct of the defendant is willful, wanton or

reckless”). Although the evidence presented at trial showed

that Spartan Radiocasting, Inc. remains in the television news

business, the evidence disclosed that Mr. Tedder no longer

works for Spartan Radiocasting, Inc.

The jury was also instructed that one of the elements

that should be considered in assessing punitive damages is the

defendants’ awareness or concealment. There was evidence in

the record to show that the corporate defendant may have

engaged in conduct which amounted to an attempt to hide

and/or destroy the evidence. The evidence revealed that after

the two broadcasts, the permanent copy of the broadcasts

was in fact erased. Additionally, the transcripts of the

broadcasts are also “lost or unable to be found.” The jury

could have found that the corporate defendant, Spartan

Radiocasting, Inc. perpetrated the attempt to hide and/or

destroy the evidence and the single defendant, Allan Ray

Tedder, did not participate in this act of concealment. Hence,

the jury could have decided against imposing punitive

damages on Mr. Tedder because of the difference in their

conduct after the publications had occurred.

The defendants’ argument that the verdicts are

inconsistent fails to take into account that the foregoing

factors differ as to the two defendants. Additionally, there

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were other factors that the jury, having listened to this

court’s charge, most probably took into consideration and

decided that the corporate defendant should have punitive

damages imposed upon it and not Mr. Tedder. The

defendants in effect urge the Court to construe the jury’s

failure to impose punitive damages on Mr. Tedder as an

implicit finding that Mr. Tedder did not act with the wanton

conduct necessary to support a punitive damages award.

In Collins v. Johnson, 245 S.C. 215, 139 $E.2d 915

(1965) the South Carolina Supreme Court recognized that a

verdict imposing punitive damages on a principal but not on

his agent did not necessarily exonerate the agent from willful

and wanton conduct. The court explained that the jury could

reasonably decide to impose punitive damages on the

principal only because of the principal’s greater ability to

pay:

Since the jurors were told that punitive

damages were left to their sound judgment and

discretion, and were correctly charged that the

ability of the respective defendants to pay

could be taken into consideration ingrading the

amount of the punishment, the jurors could

well have reasoned that even though Johnson

was guilty of willfulness, still under all of the

circumstances of the case, including the ability

of the defendant Johnson to pay, a verdict

against him for punitive damages, in even a

small or nominal amount, would be a

punishment which, in their sound judgment

and discretion, the jurors did not see fit to

inflict. The jurors could have further reasoned,

in their sound judgment and discretion, that

under all of the circumstances, the coach

company alone was able to and should pay the

amount of $25,000 by way of punishment

ee

even though Johnson was guilty of

willfulness. ..

139 S.E.2d at 9217.

Although Collins was decided prior to Gamble v.

Stevenson and the Collins record does not disclose whether

the jury was instructed as to the other Gamble factors, the

reasoning employed by the Collins court on this point is

certainly persuasive. In_Kirby v. Gulf Refining Co., 173 S.C.

224, 175 SE. 535 (1934), the primary case cited by the

Defendants in their brief, the Court did not mandate that the

verdicts be deemed inconsistent. In that case the evidence

and instructions presented below indicated that the jury

verdict exonerating the agent from punitive damages

amounted to a finding that he was innocent of malice:

If the agent is exonerated, can the principal be

held liable? In other words, the jury have

acquitted Livingston of malice in what he did

in the premises and have held Gulf Refining

Company liable in punitive damages. Malice

is the essential ingredient necessary to sustain

a verdict for punitive damages. The jury say

Livingston, the agent, is innocent of malice,

2

In Collins the trial court did not find the verdicts to be illogical. On

appeal the South Carolina Supreme Court, based on the evidence and

instructions in the record, ruled that it agreed with the trial court on

this point. This ruling does not, however, mean that all judgments

where such verdicts have been rendered are defective. Rather, the

Collins court in effect found no abuse of discretion in the trial court’s

determination that the verdicts were illogical based on the record.

While the evidence presented in Collins may have led the trial court

to conclude that the verdicts were illogical, the evidence in the instant

case leads to the contrary conclusion. To the extent that Collins does

rt a mule that verdicts of this nature are inconsistent as a matter of

law, the Plaintiff submits that Co/lins has been overruled by Gamble

v. Stevenson.

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an.

but that Gulf Refining Co., who acted alone

through its said agent, is guilty of malice.

How can that be?

175 S.E. at 537.

We say here, if [the agent] had no malice in his

conduct toward plaintiff, and the jury by their

verdict have said he had none, “there was no

other chance for... [the principal] to have it.”

Id. at 539.

In the instant case, by contrast, there is absolutely no

reason to presume from the jury’s verdicts that they intended

to absolve Mr. Tedder from the wanton conduct necessary to

Support a punitive damages award. On the contrary, the

special interrogatory verdict form clearly showed that the

verdict was not inconsistent and not illogic. It is just as

logical to presume that the jury found that Mr. Tedder had

engaged in conduct sufficiently egregious to justify the

imposition of punitive damages but nonetheless declined to

impose this sanction on him because of the lack of evidence

of his ability to pay, because the jury perceived no need to

deter him from future similar conduct and because he was not

involved in trying to hide or destroy the evidence. Because

the verdicts thus can be reconciled, and because it is the

court’s duty to attempt to reconcile the verdicts if this can be

done reasonably, this court finds the verdicts to be consistent

and deny the motion for a new trial on this ground.

This court now addresses the issue of punitive damages.

In the recent case of Gamble v. Stevenson, S.C. :

406 S.E.2d 350 (1991), the Supreme Court of South Carolina

established new standards for the trial court’s review of

punitive damage verdicts.

ins.

This court has conducted a post-trial review and has

considered the factors and guidelines as set forth by our

Supreme Court in the Gamble decision. This court, in

charging the jury, set forth the factors that the jury may

consider in awarding punitive damages, and this court has

considered those factors among others and the evidence and

testimony in this case in making its decision. The court finds

no evidence that the verdict of the jury was the result of

arbitrariness, capriciousness, or other factors that would have

had an improper impact on the jury’s verdict. Taken as a

whole, this court finds no reason to alter the jury’s punitive

damage award.

Of significant importance to this court is the fact that

this case involved the intentional tort of defamation and later

concealment, as well as denial. As opposed to negligence

cases, those involving intentional torts certainly justify

punitive damage awards to a much greater degree.

The defendants argue that the punitive damage award of

Six Hundred and Twenty-Five Thousand ($625,000) Dollars

is excessive because it is twelve and one-half times the Fifty

Thousand Dollar actual damage award: The court finds this

argument without merit. Indeed, our Supreme Court has held

on numerous occasions that even nominal awards of actual

damages will support a substantial award of punitive

damages. The court finds that the actual damage award of

Fifty Thousand ($50,000) Dollars is supported by clear and

convincing evidence in the record; and, further, that the

punitive damage award of Six Hundred Twenty-Five

Thousand ($625,000) Dollars is not excessive. The

defendants argue that the award of Six Hundred Twenty-Five

Thousand ($625,000) Dollars is excessive; however, the court

notes that this amount is 3.4722% of the defendant’s net

worth of Eighteen Million ($18,000,000) Dollars. Clearly,

this is not excessive and the court so finds.

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Now, in returning to the factors set forth in Gamble and

charged to the jury, the court must assume without evidence

to the contrary that the jury followed the court’s instructions

and considered those factors along with other they were

advised they could consider. This court, in making its

independent review of the punitive damage award based upon

those factors, finds that the jury’s award was supported by

the evidence and testimony in the case.

This court therefore finds as a matter of law that the jury

in fact properly considered the guidelines that this court set

out in its charge to the jury and, after making an independent

review, finds that the jury verdict is proper, is consistent

with the guidelines as set out by this court in its charge and

the punitive damage award should be affirmed.

NOW, THEREFORE, IT IS ORDERED that all motions

of the defendants are denied.

J. DERHAM COLE

RESIDENT JUDGE

SEVENTH JUDICIAL CIRCUIT

Spartanbug, S.C.

December 22, 1992

APPENDIX E

oi -—

THE COURT: Hand up the verdict, please,

sir. All right, sir. To the question of whether

or not the jury finds that the plaintiff has

proven by a preponderance of the evidence

that the broadcasts in question were

defamatory, the answer of the jury is yes; to

the question of whether or not the jury has

unanimously found that the plaintiffs have

proven by clear and convincing evidence that

the broadcasts complained of by the plaintiff

were false, the answer is yes; to the question

of whether or not the jury has found

unanimously that the plaintiff has proved by

clear and convincing evidence that the

broadcasts were published by the defendants

with actual knowledge of the falsity thereof or

with a reckless disregard for the truth or

falsity thereof, ihe answer is yes, to the....

(R. 00476).

APPENDIX F

on

CONSTITUTIONAL PROVISION

INVOLVED

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof: or

abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition the

Government for a redress of grievances.” U.S. Constitution

Amendment 1.