Arctic Co., Ltd. v. Loudoun Times Mirror

• Citation: 624 F.2d 518
• Decision Date: 03 July 1980
• Docket Number: No. 79-1121,79-1121
• Parties: 6 Media L. Rep. 1433 ARCTIC COMPANY, LTD. t/a Iroquois Research Institute, Appellant, v. LOUDOUN TIMES MIRROR; Kyle Parks; R. E. McDaniel, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 518

624 F.2d 518

6 Media L. Rep. 1433

ARCTIC COMPANY, LTD. t/a Iroquois Research Institute, Appellant, v. LOUDOUN TIMES MIRROR; Kyle Parks; R. E. McDaniel, Appellees.

No. 79-1121.

United States Court of Appeals Fourth Circuit.

Argued Jan. 9, 1980.

Decided July 3, 1980.

H. Neil Garson, Fairfax, Va. (Daniel R. Kane, Washington, D. C., Michael A. Mays, Kenneth R. Weiner, Garson, de Member & Weiner, Fairfax, Va., Daniel R. Kane, Washington, D. C., on brief), for appellant.

Michael S. Horwatt, Reston, Va. (Thomas S. Kenny, Wyatt B. Durrette, Jr., Horwatt, Kenny, Glennon, Goodman & Schultz, Reston, Va., Chess, Durrette & Roeder, P. C., Fairfax, Va., on brief), for appellees.

Before FIELD, Senior Circuit Judge, and RUSSELL and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

This is an appeal by Arctic Co. Ltd. t/a Iroquois Research Institute (Iroquois) from the order of the district court granting summary judgment for the defendants in a libel action. The suit was brought against Loudoun Times Mirror (Mirror), a newspaper published in Loudoun County, Virginia, Carl Parks (Parks), a Mirror reporter, and R. E. McDaniel (McDaniel), an amateur archaeologist, and was based on an article written by Parks and published in the Mirror on September 14, 1978. The article concerned a proposed project on Lowes Island. Iroquois claimed that false statements in that article, attributed to McDaniel, had damaged its professional reputation.

The Fairfax County Water Authority, wishing to increase its water supply, sought a permit from the Army Corps of Engineers for construction of water intake facilities on Lowes Island, which is located in the Potomac River in the Loudoun County, Virginia area. The permit application required an inventory and evaluation of all known archaeological, historical, and architectural resources on Lowes Island and a plan to preserve the archaeological and historical resources. Iroquois, an independent company engaged in historical and archaeological research, was contacted in January, 1978 by the Water Authority to undertake this inventory and evaluation and design the mitigation plan. Iroquois had conducted numerous archaeological research projects for private business and other government agencies in various parts of the country and was performing work in seven different states on twenty different "cultural resource" assignments during the period in which it worked on Lowes Island. It commenced the project in January 1978, despite severe weather problems, and five months later, the project was completed with a report to the Water Authority. Iroquois was then hired for one additional month to prepare bidding specifications for management of the Island's resources. (The Water Authority's application was successful and the permit was subsequently granted.)

Lowes Island is an island of considerable historical and archaeological value. It is also the center of a considerable rezoning controversy. The impending acquisition of a large part of the island by a private developer, and the efforts of that developer to rezone the land for commercial use, had created considerable conflict among developers, citizens in the area, and history buffs.

As a result of this land development conflict the Mirror, in September 1978, assigned Parks to write a story on the archaeological explorations on Lowes Island. Parks, at the time of the assignment, knew nothing of Iroquois. After making inquiries among his colleagues at his newspaper, Parks was informed that McDaniel had a reputation as an archaeological expert. McDaniel was a United States Government employee and an amateur archaeologist. He had worked on Lowes Island pursuing his archaeological avocation and was known in the community as an authority on Lowes Island. ¹ Parks interviewed McDaniel while he was engaged in archaeological explorations on Lowes Island. Parks' story based on the McDaniel interview was published in the defendant Mirror on September 14, 1978. In the report Parks quoted McDaniel as saying, among other things:

"The Iroqois (sic) group was commissioned by the Fairfax County Water Authority which is building a water intake on the island."

"The Iroqois (sic) group did the work in February and had a deadline to meet. So instead of waiting for the earth to thaw, they went to work with jackhammers."

" 'They recovered three or four artifacts by accident,' he said. 'They ignored any kind of settlement plan.' "

"It's not much of a plan at all, McDaniel thinks."

" 'We had already covered the ground they did,' he said. 'They don't have a good reputation in archaeological circles. They cut corners.' "

After the publication of the article, McDaniel contacted the newspaper advising them that he had not made the statement concerning Iroquois' reputation. Thereafter, seven days later, on September 21, the defendant Mirror published a clarification:

"In a September 14 article on pg. C-1 entitled 'McDaniel: Archaeologist Against Bulldozers', one of R. E. McDaniel's quotes was unfortunately taken out of context.

McDaniel was describing the work of Iroquois Research Institute at Lowes Island when he said the Institution had a bad reputation and cut corners. McDaniel was only talking about the Institutes' work on the Island and not its general operations." ²

John G. Lewis, a personal acquaintance of McDaniel and an authority on the history of Loudoun County and the county's representative to the Virginia Historical Landmarks Commission, wrote a letter on June 27, 1978, to the Corps of Engineers complaining about the quality of Iroquois' work. William M. McKelso, a commissioner of the Virginia Research Center for Archaeology, wrote the Water Authority on June 28, complaining that Iroquois' report contained insufficient information. He also stated that part of the research was not necessary because Iroquois had been given the results of McDaniel's archaeological research. Parks asserts in his affidavit that he became aware of this information during his preparation of the article.

The trial court found that Iroquois was not a public figure, but was a public official under the guidelines of Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) and could not recover in a libel action unless it proved actual malice or a reckless disregard for the truth on the part of defendants. The Court further held that, on the basis of the pleadings and the affidavits, there was no genuine issue of material fact concerning malice, and granted summary judgment for defendants.

Iroquois contends that it is neither a public figure nor a public official. Alternatively, it claims that defendant McDaniel's denial of the crucial statement attributed to him by the reporter created an inference that, if the news story was in part contrived, Parks "had serious doubts" about the veracity of that part of the story. This was sufficient proof of malice for jury consideration under the criteria of St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). It also contends that McDaniel competed with it professionally, creating a permissible inference of malice on his part....