Desmond v. News & Observer Publ'g Co.

• Decision Date: 18 December 2018
• Docket Number: No. COA18-411,COA18-411
• Citation: 823 S.E.2d 412,263 N.C.App. 26
• Parties: Beth DESMOND, Plaintiff, v. The NEWS AND OBSERVER PUBLISHING COMPANY, McClatchy Newspapers, Inc. and Mandy Locke, Defendants.
• Court: North Carolina Court of Appeals

263 N.C.App. 26

823 S.E.2d 412

Beth DESMOND, Plaintiff,

v.The NEWS AND OBSERVER PUBLISHING COMPANY, McClatchy Newspapers, Inc. and Mandy Locke, Defendants.

No. COA18-411

Court of Appeals of North Carolina.

Filed: December 18, 2018

DeMent Askew, LLP, by James T. Johnson and Chynna T. Smith, Raleigh, for plaintiff-appellee.

The Bussian Law Firm, PLLC, by John A. Bussian, Raleigh, for defendant-appellants The News and Observer Publishing Company and Mandy Locke.

Essex Richards, P.A., Charlotte, by Jonathan E. Buchan, for amici curiae.

STROUD, Judge.

Plaintiff filed a complaint alleging that in 2010 defendants published a series of defamatory articles entitled "Agent's Secrets[;]" "[t]he purpose of the Series was to report alleged problems with the SBI[, the State Bureau of Investigation], including the SBI's work, policies, and practices." Plaintiff was a special agent in firearms examination employed by the SBI, and the articles criticized and questioned her work in two murder cases. Plaintiff brought this action claiming defamation and ultimately prevailed before the jury.

Defendants The News and Observer Publishing Company ("N & O") and Mandy Locke¹ appeal the order and judgment entered upon the jury verdict determining they had defamed plaintiff and awarding compensatory and punitive damages and a subsequent order denying their motion for judgment notwithstanding the verdict ("JNOV") or in the alternative, motion for a new trial.² Defendants argue the trial court should have granted their motion for JNOV because plaintiff failed to prove the defamatory statements were made with actual malice. Defendants also argue the trial court erred by excluding evidence of a report issued after the articles were published which they claim tends to prove the truth of the statements in the articles. Defendants further challenge portions of the jury instructions. We affirm the orders.

I. Amici Curiae Brief

Several news organizations ("Amici") submitted an amici curiae brief to support defendants. Amici emphasize that "[t]his case presents an issue of critical importance to all North Carolina journalists: the proper application of the constitutional ‘actual malice’ standard to allegedly defamatory speech about a public official." We agree this case presents issues of critical importance not just to journalists but to all citizens and residents of North Carolina and to our court system. Amici are correct that "[t]he operation of the criminal justice system is a matter of utmost public significance." The United States Supreme Court has long recognized "the ‘fundamental value determination of our society,’ given voice in Justice Harlan's concurrence in Winship , that ‘it is far worse to convict an innocent man than to let a guilty man go free.’ 397 U.S. at 372 " Yates v. Aiken , 484 U.S. 211, 214, 108 S.Ct. 534, 536, 98 L.Ed.2d 546, 552 (1988).

Amici contend that if the jury's verdict here stands, it will cause "intolerable self-censorship" prohibited by the First Amendment and "[t]he verdict in this case is particularly dangerous because its crippling size will weigh on the shoulders of all North Carolina news organizations." (Quotation marks omitted.) Amici argue that speech critical of public officials should be almost entirely unrestrained, particularly in areas such as this, of the utmost public concern, to aid in both public safety and justice to the accused. Amici quote Justice Black in his concurrence in the seminal case of New York Times Co. v. Sullivan , wherein he and Justice Douglas expressed their belief that regardless of malice, under the Constitution "the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials." 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686, 716 (1964) (Black, J., concurring). But the United States Supreme Court has consistently recognized that as important as free debate regarding matters of public interest is, there is a countervailing interest as well—"the individual's right to protection of his own good name":

The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan , supra , at 293, 84 S.Ct. at 733 (Black, J., concurring); Garrison v. Louisiana , 379 U.S. at 80, 85 S.Ct. at 218 (1964) (Douglas, J., concurring); Curtis Publishing Co. v. Butts , 388 U.S. at 170, 87 S.Ct. at 1999 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.

The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as Mr. Justice Stewart has reminded us, the individual's right to the protection of his own good name

"reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system." Rosenblatt v. Baer , 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (concurring opinion).

Gertz v. Welch , 418 U.S. 323, 341, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, 806 (1974).

Plaintiff is a public official, and the articles published by defendants addressed issues of public concern, so she was required to prove her case to the very highest of standards: she could

recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.

Id. at 342, 94 S.Ct. at 342, 41 L.Ed. 2d at 807. Despite Amici's contentions otherwise, after a careful examination of the testimony, documentary evidence, and arguments presented by the parties, we conclude that plaintiff's evidence was sufficient to meet the high standard of the New York Times test. See generally id.

II. Background

This case arises from a defamation suit brought by plaintiff after defendants published articles in The N & O about plaintiff's work as a special agent for the SBI in examining firearms. As an employee of the SBI, plaintiff was a public official, and she had testified at two murder trials—both arising out of the death of Christopher Foggs—about the bullet fragments and casings found at the scene of the shooting. See Desmond v. News & Observer Publ'g Co. , 241 N.C. App. 10, 13–14, 772 S.E.2d 128, 133 (2015) (" Desmond I") . The articles were about plaintiff's work and testimony in the two cases. Id. at 14-15, 772 S.E.2d at 133. We described the factual background of the two underlying criminal trials where plaintiff testified and the articles in the prior appeal in this case:

I. Factual Background

The alleged defamation arose out of defendants' newspaper articles regarding plaintiff's testimony in two criminal trials. Both of the criminal defendants in those cases appealed their convictions to this Court, and we will first review briefly the facts of those underlying cases, as previously described by this Court.

A. Underlying Criminal Cases

In Pitt County, North Carolina, during the afternoon of 19 April 2005, Loretta Strong and several of her female cousins and friends (collectively, the "Haddock girls") were socializing in a vacant lot across the street from the home of Strong's grandmother, Lossie Haddock. Vonzeil Adams drove by the lot with a group of her girlfriends. A verbal altercation arose between the two groups of women. Adams was angry with the Haddock girls because Adams's sister had complained to Adams that the Haddock girls had assaulted the sister in the presence of Adams's children. During the exchange, Adams said she would return and that she had something for the Haddock girls.

Later that afternoon, some of the Haddock girls drove by Adams's house where another verbal altercation occurred. The Haddock girls returned to and congregated on Lossie Haddock's porch.

Around 6:00 p.m. or 7:00 p.m., Adams traveled to Lossie Haddock's house in a reddish Chevrolet Caprice driven by her boyfriend, Jemaul Green. Adams's sister and several girlfriends were in the car as well. A car full of Adams's girlfriends followed shortly behind. Green parked the car across from Lossie Haddock's house. Adams exited the vehicle and walked toward the house, exchanging words with the women on the porch. The other women exited the vehicle, but stayed behind Adams. Strong stepped off the porch and began to approach Adams, but stopped before she reached the street.

Adams stopped in the middle of the road. She then exclaimed that someone should get a firearm and shoot the Haddock girls. Green exited the vehicle and fired a gun into the air. Green then pointed the gun in the direction of Lossie Haddock's house and fired several shots. Jasmine Cox, who was on the porch, began running into the house

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