Anderson v. The Augusta Chronicle

• Decision Date: 03 February 2003
• Docket Number: No. 3597.,3597.
• Citation: 585 S.E.2d 506,355 S.C. 461
• Parties: Tom ANDERSON, Appellant, v. THE AUGUSTA CHRONICLE, Morris Communications, Inc., Respondents.
• Court: South Carolina Court of Appeals

355 S.C. 461

585 S.E.2d 506

Tom ANDERSON, Appellant, v. THE AUGUSTA CHRONICLE, Morris Communications, Inc., Respondents.

No. 3597.

Court of Appeals of South Carolina.

Heard May 9, 2001.

Decided February 3, 2003.

Certiorari Granted October 3, 2003.

John W. Harte, of Aiken, for Appellant.

James M. Holly, of Aiken; and David Hudson, of Augusta, for Respondents.

SHULER, J.:

In this defamation action, Tom Anderson appeals a directed verdict in favor of The Augusta Chronicle and Morris Communications, Inc. (collectively "The Chronicle"). We reverse and remand for a new trial.

FACTS/PROCEDURAL HISTORY

In 1996, Tom Anderson ran unsuccessfully for a seat in the South Carolina House of Representatives. During the campaign, two hurricanes hit the coast of North Carolina; Anderson, a claims adjuster specializing in natural disasters, traveled to North Carolina to process insurance claims. As a result, Anderson was out of the state for ten weeks of the election season.

The next year, following redistricting, Anderson prepared to run again in a special election for the same House seat. Chad Bray, a reporter for The Chronicle, phoned Anderson twice to discuss the previous campaign. On April 6, 1997, The Chronicle published an article by Bray concerning the special election and stating in relevant part:

The Democrats [sic] best hope—other than Mr. Clyburn— may be Tom Anderson. He's expected to seek a rematch against state Rep. Roland Smith, R-Langley, Mr. Brown said.

Mr. Anderson took 32 percent of the vote in District 84 when he ran against Mr. Smith in 1996, even though he was out of the area with the National Guard during the final weeks of the election.

At some point thereafter, Anderson announced his candidacy and again spoke with Bray by phone. According to Anderson, the subject of his absence during the 1996 campaign did not come up during the call. On June 3, The Chronicle published another article by Bray about the special election. In pertinent part, the article stated:

Mr. Anderson, a Bath property appraiser, said he felt cheated after being called away for National Guard duty in the last month before the 1996 general election. Mr. Smith eventually won with 67 percent of the vote to Mr. Anderson's 33 percent.

Anderson, who asserts he never told Bray he worked with the National Guard, did not contact The Chronicle following publication of either article to request a retraction or correction.

The following September, John Boyette, The Chronicle's Aiken Bureau Chief, contacted Anderson and asked if he was planning to withdraw from the race since he had been "proven" a liar for stating he was working for the National Guard in 1996. Anderson told Boyette Bray must have misunderstood when he said he had worked for the National Flood Insurance Program (NFIP), an insurance adjuster program operated under the auspices of the Federal Emergency Management Agency (FEMA). The Chronicle published Boyette's article, headlined "GOP wants Anderson out of House race," on September 18. The subheading read: "Clearwater Democratic candidate is accused of lying about his National Guard service." This article stated in part:

The South Carolina Republican Party called for Tom Anderson to drop out of the House District 84 race Wednesday, charging that the Clearwater Democrat lied about service in the National Guard.

The South Carolina National Guard has no record of Mr. Anderson's ever serving, said Trey Walker, state GOP executive director. In a faxed statement, Mr. Walker said Mr. Anderson "should immediately dishonorably discharge himself from the race."

The Augusta Chronicle reported in June that Mr. Anderson said he felt cheated after being called away for National Guard duty in the last month before the 1996 general election ....

Mr. Anderson, however, denied Wednesday that he ever told The Chronicle that he had served in the National Guard. Instead, he said, he spent more than two months in North Carolina doing damage appraisals for the National Flood Insurance Group after two hurricanes hit the coast. Last fall, National Guard units were called on to assist victims of Hurricane Fran in eastern North Carolina.

....

Mr. Anderson was drafted into the Army, served in the Korean War and, after a two-year stint in Europe, was discharged in 1956.

The same day, an article appeared in the Aiken Standard with the headline, "Democrat responds to `misinformation.'" This article, by senior writer Carl Langley, recorded Anderson's denunciation of The Chronicle's allegations and quoted him as saying: "I've never been in the National Guard, and would have been a fool to make such a statement." The article continued:

Anderson missed several weeks of the last campaign by working on insurance claims generated from Hurricane Fran in North Carolina.

"I was gone on two occasions during the 1996 campaign, and a lot of the insurance (claims) we worked on involved the National Flood Insurance Program," said Anderson. He speculated that the reporter for an Augusta newspaper couldn't tell the difference between the national flood insurance program and the National Guard.

Anderson said he told the reporter that during the last election he had to go to North Carolina in July and again in September and October to work on the insurance claims.

Other local papers also published articles concerning the controversy.

On September 26, Anderson received a telephone call from Pat Willis. Willis told Anderson she was working on an article for The Chronicle and requested proof that he was a government-approved insurance adjuster and that he had worked in North Carolina in 1996. Anderson subsequently faxed Willis several documents, including a letter on FEMA/ NFIP stationery approving his application for NFIP certified adjuster status.

Despite this information, on October 1 The Chronicle published an editorial with the headline "Let the liar run." Written by Phil Kent, The Chronicle's editorial page editor, the piece stated in full:

Clearwater Democrat Tom Anderson, running in November's court-ordered special election for South Carolina's House District 84 seat, has been exposed as a liar.

He told this newspaper he was called away to National Guard duty in the last weeks of the 1996 election, his first race against incumbent state Rep. Roland Smith, R-Langley. (Anderson lost by a decisive margin.)

It turns out, however, the state Guard has no record of Anderson ever serving—either then or any other time.

State GOP director Trey Walker, saying Anderson has dishonored himself and the National Guard, demands that the Democrat withdraw from the race. Walker's right about the dishonor, but what about the withdrawal?

If Anderson is the best Democrats can come up with, they still have every right to run him. There's nothing in the election rules that says a political party can't nominate for public office a candidate who, in effect, lies on his resume.

We are confident that an informed electorate won't vote into office a proven prevaricator. After all, he doesn't even have the long robes of one of Al Gore's Buddhist monks to hide behind!

The morning following publication, Anderson tried to reach Kent to demand a retraction or clarification. After several attempts, Anderson eventually spoke with a woman named Tara in The Chronicle's editorial department.¹ Tara informed Anderson that Kent "wouldn't talk" to him, but stated that if Anderson faxed a rebuttal letter it would be printed. In the meantime, Republican Party officials mailed copies of the editorial to district voters.

The Chronicle subsequently printed a "Clarification" on October 29:

Tom Anderson, Democratic candidate in this year's special election for the South Carolina House District 84 seat, said he was called away from the Aiken area just before the 1996 election for the post to work for the National Flood Insurance Program. Mr. Anderson also said he was misquoted in [the] June 2 story in The Augusta Chronicle.

The paper also published Anderson's response as a Letter to the Editor on November 2.

Anderson ultimately filed a complaint for libel, amended March 8, 1999, alleging The Chronicle published false statements in Kent's editorial dated October 1, 1997. At a trial held October 11, 1999, The Chronicle moved for a directed verdict at the close of Anderson's case. The trial court orally granted the motion on October 12, finding Anderson failed to show constitutional malice, and thereafter filed a form order judgment. This appeal followed.

LAW/ANALYSIS

Standard of Review

When deciding a motion for a directed verdict, the trial court "must view the evidence and all reasonable inferences in the light most favorable to the non-moving party." Swinton Creek Nursery v. Edisto Farm Credit, ACA., 334 S.C. 469, 476, 514 S.E.2d 126, 130 (1999); see Bell v. Evening Post Pub. Co., 318 S.C. 558, 459.S.E.2d 315 (Ct.App.1995). If the evidence presented yields only one inference such that the trial court may decide the issue as a matter of law, the decision to grant the motion is proper. See Swinton, 334 S.C. at 476, 514 S.E.2d at 130. On the other hand, a directed verdict motion on liability for libel is properly denied where evidence exists justifying submitting the issue to the jury. See Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 513, 506 S.E.2d 497, 503 (1998).

Whether a plaintiff has presented evidence sufficient to constitute actual malice is, in the first instance, a question of law for the trial court. See Elder v. Gaffney Ledger, 341 S.C. 108, 533 S.E.2d 899 (2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("When determining if ... actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times."); Bose Corp. v. Consumers Union, 466 U.S. 485, 511, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) ("Judges, as...