Newton v. National Broadcasting Co., Inc.
| Citation | 930 F.2d 662 |
| Decision Date | 05 April 1991 |
| Docket Number | 89-55285,Nos. 89-55220,s. 89-55220 |
| Parties | Carson Wayne NEWTON, aka: Wayne Newton, Plaintiff-Appellee, v. NATIONAL BROADCASTING COMPANY, INC.; Brian Elliot Ross; Ira Silverman; Paul Greenberg, et al., Defendants-Appellants. Carson Wayne NEWTON, aka: Wayne Newton, Plaintiff-Cross-Appellant, v. NATIONAL BROADCASTING COMPANY, INC.; Brian Elliot Ross; Ira Silverman; Paul Greenberg, et al., Defendants-Cross-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Floyd Abrams, Ira J. Dembrow, Albert Robbins, Cahill Gordon & Reindel, New York City, and Robert S. Warren, Rex S. Heinke, Kelli L. Sager, Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendants-appellants and defendants-cross-appellees.
Morton R. Galane, Thomas J. Tanksley and Philip M. Ballif, Las Vegas, Nev., for plaintiff-appellee and plaintiff-cross-appellant.
P. Cameron DeVore, Davis Wright & Jones, Seattle, Wash., Sam Antar, Capital Cities, ABC, Inc., Douglas P. Jacobs, CBS, Inc., and Muriel Henle Reis, Fox Television Stations, Inc., New York City, for amici curiae.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN, Chief Judge, NELSON and NORRIS, Circuit Judges.
In the Report on the Virginia Resolutions of 1798, James Madison wrote:
In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this foundation it yet stands....
4 Elliot's Debates on the Federal Constitution 570 (1876). In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court secured for the press the ability to write and publish freely without risking vindictive reprisals from local juries. The Court in New York Times adopted as a constitutional rule the requirement that appellate courts independently review jury findings of "actual malice" in public figure defamation cases. There, the rule of independent review was applied to set aside a verdict of an all-white Alabama jury against a New York newspaper and several black civil rights leaders in favor of the local Commissioner of Public Affairs. Here, we consider the largest punitive damages verdict in American libel history returned against a different New York news organization by a Las Vegas jury in favor of a hometown hero. We must decide the extent to which the rule of independent review in New York Times and its progeny requires us to depart from the traditional rule of deference to the fact-finding function of the jury. Just as the Supreme Court struggled in Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) and Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) to strike the proper balance between our constitutional (Seventh Amendment) deference to the factfinder and our constitutional duty to safeguard First Amendment values, we now face the daunting task of reconciling our duty to respect the jury's fact-finding role with our duty to protect the values enshrined in the First Amendment.
On October 6, 1980, National Broadcasting Company, Inc. (NBC) broadcast on television a three and one-half minute story called "Wayne Newton and the Law" on the NBC Nightly News. Relevant excerpts from the script of that story read as follows:
... [Guido] Penosi is a New York hoodlum from the Gambino Mafia family, a man with a long criminal record, now believed to be the Gambino family's man on the West Coast, in the narcotics business, and also in show business. Penosi is also a key figure in a federal grand jury investigation ... that involves one of the big casinos here [Las Vegas], the Aladdin; and one of Las Vegas's top performers, singer Wayne Newton. Newton is said to make a quarter of a million dollars a week for his nightclub act, and late last week, Newton and a partner were given state approval to buy the Aladdin Hotel in Las Vegas for 85 million dollars. A federal grand jury is now investigating the role of Guido Penosi and the mob in Newton's deal for the Aladdin. Despite his big income, authorities say Newton has had financial problems. Investigators say that last year, just before Newton announced he would buy the Aladdin, Newton called Guido Penosi for help with a problem. Investigators say whatever the problem was, it was important enough for Penosi to take it up with leaders of the Gambino family in New York. Police in New York say that this mob boss, Frank Piccolo, told associates that he had taken care of Newton's problem and had become a hidden partner in the Aladdin hotel deal. At a hearing of the State Gaming Board, Wayne Newton said he had no hidden partners, and Newton said under oath that he knew Guido Penosi ... but that Penosi was just a long-time family friend.
. . . . .
Federal authorities say that Newton is not telling the whole story, and that Newton is expected to be one of the first witnesses in the grand jury investigation. Newton became angry when we tried to talk to him about his relationship with Guido Penosi.
. . . . .
Guido Penosi told us he doesn't know anyone named Wayne Newton. Federal authorities say they know of at least 11 phone calls Penosi made to Newton's house in one two-month period, and authorities say those phone calls and Penosi's relationship with Newton and other entertainment figures are now part of a broad year-long FBI investigation of the investment of East Coast mob money from narcotics and racketeering into the entertainment business in Las Vegas and Hollywood. 1
On April 10, 1981 appellant Carson Wayne Newton filed a defamation action against NBC and three of its journalists: Brian Ross, the reporter, Ira Silverman, the field producer, and Paul Greenberg, the executive producer. Newton claimed that the October 6 broadcast, and two subsequent broadcasts concerning the grand jury investigation and indictment, either falsely stated or conveyed the false impression that "the Mafia and mob sources" helped Newton buy the Aladdin in exchange for a hidden share of the hotel/casino and that Newton, while under oath, deceived Nevada state gaming authorities about his relationship with the Mafia. 2
Discovery proceedings commenced in Las Vegas, the venue in which Newton had filed his complaint. When discovery was completed, NBC moved for summary judgment and a change of venue from Las Vegas. The district court denied summary judgment on the ground that the jury could find that the NBC broadcasts left a false and defamatory impression about Newton, notwithstanding the fact that NBC had "made a substantial and persuasive showing that each of the statements made are either true or protected under the common law privilege of fair reporting." ER at 160. The district court also denied the motion for a change of venue.
Following a 37-day trial, the jury returned a special verdict, finding all four defendants liable for defaming Newton. The jury explicitly found that at least one statement and one impression about Newton conveyed by one or more of the three broadcasts was defamatory, of a factual nature, and was false. 3 The jury also found that two of the three NBC journalists had made a false and defamatory statement with knowledge of falsity or with serious subjective doubts about the statement's truth or accuracy and that all three individual defendants intended to convey a false or defamatory impression about Newton with knowledge of falsity or serious subjective doubt about the truth of the impression. The district court, in considering NBC's motion for judgment notwithstanding the verdict, discussed only what it considered to be the false impression created by the broadcasts. Newton v. National Broadcasting Co., Inc., 677 F.Supp. 1066, 1067 (D.Nev.1987) ().
The jury awarded Newton more than $19 million in compensatory and punitive damages, to which prejudgment interest of approximately $3.5 million was added. In response to NBC's motion for judgment notwithstanding the verdict and in the alternative for a new trial, the district court upheld the jury's verdict of liability and its awards of damages for pain and suffering and punitive damages. It set aside the verdict on the jury's award of $9,046,750 for Newton's claims of lost past and future income, ruling that Newton "failed to establish by a preponderance of the evidence that the broadcasts in question had any causal connection to any alleged loss of past or future income...." Id. at 1069.
The district court also set aside the jury's award of $5 million for damage to Newton's reputation, concluding that the award "shocks the conscience of the court because the broadcasts did not tarnish [Newton's] outstanding reputation." Id. at 1068. The court directed Newton to file a remittitur of all sums except $225,000 for physical and mental injury, $50,000 as presumed damages to reputation, and $5 million in punitive damages or there would be a new trial on all issues. In addition to ordering a new trial if the remittitur were not filed, the district court ruled that the interests of justice required that the new trial be held in the Central District of California. Id. at 1069. Put to the choice of a new trial outside Las Vegas or filing the remittitur, Newton filed the remittitur. 4 Final judgment for $5,275,000 was entered on ...
To continue reading
Request your trial
-
Henry v. Media Gen. Operations, Inc.
...and publishers from liability based on errors of fact that arise from reliance on a credible source." Newton v. National Broadcasting Co., Inc. , 930 F.2d 662, 682 (9th Cir. 1990) ; see Hall , 490 A.2d at 505 (holding that the source in question was credible in part because he had been reli......
-
Metabolife Intern., Inc. v. Wornick, Civ. 99-1095-R.
...malice," which exists when the speaker "entertained serious doubts as to the truth of his statement," see Newton v. National Broad. Co., 930 F.2d 662, 668 (9th Cir.1990) (en banc) (citing Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511 n. 30, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1......
-
Masson v. New Yorker Magazine, Inc.
...credibility determinations, and a less deferential review of the factfinder's evaluation of other evidence. Newton v. National Broadcasting Co., 930 F.2d 662, 672 (9th Cir.1990), cert. denied, ___ U.S. ___, 112 S.Ct. 192, 116 L.Ed.2d 152 In the absence of a finding of liability, the policy ......
-
Wayment v. Clear Channel Broadcasting, Inc.
...Inc., 123 F.3d 1249, 1251 (9th Cir.1997) (assuming without discussion that Clint East-wood was a public figure); Newton v. NBC, Inc., 930 F.2d 662, 668 n. 6 (9th Cir.1990) (noting that the district court had imposed a heavy fine on Wayne Newton simply for contesting his public figure status......