Speer v. Ottaway Newspapers, Inc.

• Decision Date: 09 September 1987
• Docket Number: 86-2222,Nos. 86-2180,s. 86-2180
• Citation: 828 F.2d 475
• Parties: 14 Media L. Rep. 1601 Don R. SPEER, Appellant, v. OTTAWAY NEWSPAPERS, INC., Appellee. Don R. SPEER, Appellee, v. OTTAWAY NEWSPAPERS, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 475

828 F.2d 475

14 Media L. Rep. 1601

Don R. SPEER, Appellant, v. OTTAWAY NEWSPAPERS, INC., Appellee.

Don R. SPEER, Appellee, v. OTTAWAY NEWSPAPERS, INC., Appellant.

Nos. 86-2180, 86-2222.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1987.

Decided Sept. 9, 1987.

Michael W. Manners, Independence, Mo., for appellant.

Charles Buchanan, Joplin, Mo., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.

FAGG, Circuit Judge.

Don R. Speer, a police officer, appeals the entry of judgment notwithstanding the verdict against him in his libel suit against Ottaway Newspapers, Inc., owner of the Joplin, Missouri, Globe. The district court based its posttrial ruling on the insufficiency of evidence to establish the Globe's actual malice. Speer argues the court committed error in refusing to attribute to the Globe the knowledge of its reporter gained in the course of his employment, regardless of the nature of the reporter's role in the publication of the libelous statement. We affirm.

Max McCoy, a reporter for the Globe, was arrested by Speer on April 23, 1983, while taking photographs at a demonstration in front of a gay bar. McCoy told Globe editors Speer and the other police officers present used excessive force in making the arrest. An article reflecting both the police's and McCoy's versions of the incident, written by another Globe reporter, appeared in the Globe the next day. On April 26 the Globe published an editorial condemning Speer's conduct at the demonstration and stating specifically that while McCoy was "cuffed and defenseless, the officers continued to strike him, kick him." This statement became the basis for Speer's claim of libel as submitted to the jury, and the jury awarded Speer $100,000 actual damages and $50,000 punitive damages.

A jury believing the evidence introduced by Speer and discounting conflicting testimony could determine McCoy knew the account of the arrest he relayed to Globe editors was false and that the Globe's editorial incorporated some portion of McCoy's falsehood. Under the first amendment, however, Speer's award may be reinstated only if the Globe published the offending statement with " 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). Speer did not challenge the district court's instruction requiring the jury to find actual malice on the part of "the officers or employees of [the Globe ] having responsibility for the publication of such statement," see id. at 287, 84 S.Ct. at 730, and the district court granted judgment notwithstanding the verdict on the ground Speer failed to offer adequate evidence on this issue.

The issues we must decide are first, whether under the record in this case Speer has established with convincing clarity, see id. at 285-86, 84 S.Ct. at 728-29, that McCoy was a person "having responsibility for the publication" of the April 26 editorial. If he was, his knowledge of falsity was effectively made known to the Globe and the Globe may be held liable to Speer. Second, if McCoy was not responsible for the editorial's publication, we must determine if those persons who were responsible either knew McCoy was lying or published with reckless disregard for whether or not he was telling the truth.

On review we make an independent examination of the whole record to ensure the principles of actual malice have been constitutionally applied. Id. at 285, 84 S.Ct. at 728-29; see generally Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501-11, 506 n. 25, 104 S.Ct. 1949, 1959-65, 1963 n. 25, 80 L.Ed.2d 502 (1984). This duty of review cannot be delegated, regardless of whether the trier of fact is judge or jury. Bose Corp., 466 U.S. at 501, 104 S.Ct. at 1959. Our obligation is independently to judge whether Speer has established by clear and convincing evidence, see id. at 511, 513, 104 S.Ct. at 1965, 1966-67; New York Times, 376 U.S. at 285-86, 84 S.Ct. at 728-29, that the Globe's editorial is not entitled to first amendment protection in this case.

Speer to establish the Globe's actual malice argues McCoy was acting in the course and scope of his employment when he covered the demonstration and when he transmitted his false version of the arrest incident to his superiors. Thus, Speer claims the Globe is vicariously liable because McCoy's state of mind (actual knowledge of the falsity) is imputed to the Globe under traditional principles of respondeat superior. See, e.g., Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253-54, 95 S.Ct. 465, 471, 42 L.Ed.2d 419 (1974) (publisher vicariously liable when sufficient evidence for jury to find reporter's own writing of feature story was within scope of his employment); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1139-40 (7th Cir.1985) (magazine liable under respondeat superior when photography editor fraudulently obtained release to print photographs). The difficulty with Speer's argument is that based on essentially undisputed facts in this case, the district court found a lack of clear and convincing evidence McCoy had anything to do with publication of the challenged editorial. We agree.

McCoy after his arrest was taken off the story of the April 23 demonstration, and his input into the editorial was limited to several meetings with Globe editors during which he was treated like any other outside source. He had no input in suggesting the topic for the editorial, making recommendations regarding the editorial's content, writing or reviewing the editorial before publication, or deciding whether the editorial would be published. He also did not exercise on behalf of the Globe any editorial judgment through the compilation, assimilation, evaluation, or presentation in print, of fact or opinion. Photographs McCoy took at the demonstration were not used in connection with the editorial. In short, McCoy contributed to the Globe's publication of...