759 F.2d 644 (8th Cir. 1985), 84-1452, Janklow v. Newsweek, Inc.

Docket Nº:84-1452.
Citation:759 F.2d 644
Party Name:William JANKLOW, Appellant, v. NEWSWEEK, INC., Appellee.
Case Date:April 10, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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759 F.2d 644 (8th Cir. 1985)

William JANKLOW, Appellant,

v.

NEWSWEEK, INC., Appellee.

No. 84-1452.

United States Court of Appeals, Eighth Circuit

April 10, 1985

Submitted Oct. 10, 1984.

Rehearing En Banc Granted May 22, 1985.

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[Copyrighted Material Omitted]

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Joseph Butler, Rapid City, S.D., for appellant.

Lawrence L. Piersol, Sioux Falls, S.D., for appellee.

Before ARNOLD, FAGG and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

The February 21, 1983 issue of Newsweek magazine contained an article entitled Dennis Banks's Last Stand, concerning the past and present activities of American Indian activist Dennis Banks and the efforts of South Dakota Governor William Janklow to obtain Banks's return to South Dakota for sentencing on two felony convictions. Janklow brought suit on February 24, 1983 contending that the Newsweek article defamed him. 1

The primary basis for the suit is a paragraph in the article concerning a "feud" between Banks and Janklow:

Along the way, Banks made a dangerous enemy--William Janklow. Their feud started in 1974, when Banks brought charges against Janklow in a tribal court for assault. A 15-year-old Indian girl who baby-sat for Janklow's children had claimed that he raped her in 1969. Federal officials found insufficient evidence to prosecute, but Banks persuaded the Rosebud Sioux chiefs to reopen the case under tribal law. Janklow, who was running for election as state attorney general at the time, refused to appear for the trial. But the tribal court found "probable cause" to believe the charges and barred Janklow from practicing law on the reservation. Eight months later Janklow--who had won his election despite the messy publicity--was prosecuting Banks. And his case--based on the 1973 Custer riot--was successful. Found guilty of riot and assault without intent to kill, Banks jumped bail before sentencing.

Janklow claims that the article is defamatory in three ways. First, he contends that the article omits or falsely reports circumstances surrounding the rape allegation. Second, he contends that the article implies that he was guilty of the rape. Finally, he contends that the article implies that he prosecuted Banks because Banks brought charges against him based on the rape allegation, whereas his prosecution of Banks had started before Banks brought those charges.

The District Court granted summary judgment for Newsweek. Specifically, the Court found, with respect to Newsweek's report of the rape allegation, that there was no genuine issue as to any material fact and that the basic facts reported by Newsweek did occur. The District Court also concluded that the article could not be read to suggest that Newsweek espoused the truth of the rape charge. With respect to the claim that the article implies that Janklow was prosecuting Banks for impermissible personal motives, the District Court concluded that the implication of improper

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prosecutorial motive amounted to the expression of an opinion and, as such, did not constitute libel. While we agree with the rulings of the District Court as to Newsweek's report of the rape allegation, we believe that the District Court erred in holding as a matter of law that the implication of an impermissible motive for Janklow's prosecution of Banks is opinion. Therefore, we reverse and remand to the District Court.

I.

Janklow's chief argument on appeal is that it is error under South Dakota law to take from a jury the question of whether an article is in fact defamatory when the article is susceptible to a defamatory meaning. We cannot agree with Janklow's reading of South Dakota law. The South Dakota Supreme Court repeatedly has upheld the dismissal of or the granting of summary judgment in defamation actions (including once in a case involving Janklow), even when the article in question was susceptible to a defamatory meaning, where the article was privileged under state or federal law or the record showed no evidence of actual malice. 2 See Janklow v. Keller, 90 S.D. 322, 241 N.W.2d 364 (1976); Hackworth v. Larson, 83 S.D. 674, 165 N.W.2d 705 (1969). Thus, that the article here in question is susceptible to a defamatory meaning by no means necessitates submission of this case to a jury.

II.

We turn to Janklow's contention that the District Court erred when it determined that there was no genuine issue as to any material fact and that Newsweek's report of the alleged rape was basically true. Janklow raises three issues in this regard. First, he identifies specific errors of fact in the article. Second, he objects to Newsweek's omission of certain facts from the article. Finally, he argues that the article implies that he actually was guilty of rape.

The basic facts reported by Newsweek concerning the alleged rape are not in dispute. A young Indian girl did make an allegation of rape against Janklow, federal officials did find insufficient evidence to prosecute, and several years later an Indian court did disbar Janklow on the basis of that allegation. Janklow does not contend that these basic facts are false.

Janklow does dispute other facts mentioned in the article. He contends that the rape allegation occurred in 1967, not 1969; that although he was guardian to the Indian girl, she had never been a babysitter for his children; that the Rosebud Sioux Court was run by judges, not by chiefs; that the case never had been "reopened" under Indian law because the tribal court never had dealt with it before; that he had not refused to appear for the Rosebud Sioux proceedings; that he was not a member of the Rosebud Sioux Bar; and that no assault charges were brought against him in the tribal court. 3 The District Court found that these details were not material to the defamatory thrust of the article. We agree. While the truth or falsity of a disputed statement is an issue for the trier of fact, Schaffer v. Spicer, 88 S.D. 36, 215 N.W.2d 134, 138 (1974), we do not believe that the District Court erred in finding that in the present case there is no issue as to the truth or falsity of any material fact with regard to Newsweek's statements concerning the rape allegation.

Janklow also claims that he was defamed by the omission of several items of fact

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from the Newsweek article. Specifically, he notes that Newsweek failed to include: (1) the fact that Janklow had passed a lie detector test in which he denied the rape while, in another test, a polygraph examiner concluded that the Indian girl was untestable because of the emotions she displayed during the testing; (2) the fact that a medical examination of the Indian girl showed no evidence of rape; and (3) the fact that a number of federal authorities, including the Senate Committee on Labor and Public Welfare, the Office of Counsel to the President, and a United States Attorney had called the rape charges "unfounded." The District Court rejected Janklow's claim that these selective omissions from the story defamed him, noting that courts are not permitted to second-guess the contents of news articles and thereby infringe on the editorial process.

We note that the law does not recognize libel by omission as a tort. Libel, by definition, consists of the publication of a false and unprivileged fact. Thus, liability may be imposed in a libel case only for an assertion or implication of fact that is false and unprivileged, and not for mere omission of a relevant fact. 4 For this reason, Newsweek could not be liable solely for its omissions, without regard to whether a material assertion was thereby made untrue. See S.D. Codified Laws Sec. 20-11-3.

In the present case, Janklow would, of course, have been entitled to prevail with respect to his claim concerning the rape allegation had he demonstrated that Newsweek made a false and unprivileged assertion with the requisite culpability. The District Court determined, after giving the errors and omissions in Newsweek's article due consideration, that there was no dispute as to any material fact, and that the report published by Newsweek concerning the rape allegation was materially true. We have held earlier in this opinion that the District Court did not err in so ruling. To the extent Janklow asks this Court to hold Newsweek liable for omission of those additional facts that he believes should have been published, but whose omission did not make what was published untrue, we reject his claim.

Although our rejection of Janklow's claim that Newsweek should be held liable for its omissions of fact is grounded on our reading of the definition of libel, we additionally believe that the result thereby reached has strong underpinnings in the First Amendment. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), the Supreme Court struck down a state law that made punishable as a misdemeanor a newspaper's failure to print the reply of a political candidate to a column by that newspaper attacking the candidate's official record. The Court observed that "[i]t has yet to be demonstrated how governmental regulation of [editorial control and judgment] can be exercised consistent with First Amendment guarantees of a free press...." Id. at 258, 94 S.Ct. at 2839. It is an "elementary First Amendment proposition that government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor." Id. at 261, 94 S.Ct. at 2841 (White, J., concurring). While newspapers have long been liable for that which they publish, they have never been liable solely for that which was omitted. Cf. Berry v. National Broadcasting Company, 480 F.2d 428 (8th Cir.1973), cert. dismissed, 418 U.S. 911, 94 S.Ct. 3203, 41 L.Ed.2d 1157 (1974). We see no constitutionally significant distinction between the law struck down in Miami Herald, which made it a misdemeanor not to publish a specific...

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