Bartimo v. Horsemen's Benev. and Protective Ass'n

• Decision Date: 23 September 1985
• Docket Number: No. 84-4550,84-4550
• Citation: 771 F.2d 894
• Parties: , 12 Media L. Rep. 1567 Vincent J. BARTIMO, Plaintiff-Appellant, v. HORSEMEN'S BENEVOLENT AND PROTECTIVE ASSOCIATION, Horsemen's Credit Union, Thomas F. Russell, Jr., and the Racing Journal, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 894

771 F.2d 894

3 Fed.R.Serv.3d 1408, 12 Media L. Rep. 1567

Vincent J. BARTIMO, Plaintiff-Appellant, v. HORSEMEN'S BENEVOLENT AND PROTECTIVE ASSOCIATION, Horsemen's Credit Union, Thomas F. Russell, Jr., and the Racing Journal, Defendants-Appellees.

No. 84-4550.

United States Court of Appeals Fifth Circuit.

Sept. 23, 1985.

Pugh & Pugh, Robert G. Pugh, Jr., Robert G. Pugh, Shreveport, La., for plaintiff-appellant.

Cook, Yancey, King & Galloway, Herschel E. Richard, Jr., John D. Collinsworth, Shreveport, La., for Horsemen's Benev. & Protective Assn.

Broadhurst, Brook, Mangham, Hardy & Reed, Charles R. Minyard, Lafayette, La., for Union, The Racing Journal and Thomas F. Russell, Jr.

Appeal from the United States District Court for the Western District of Louisiana.

Before RANDALL, DAVIS, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

In an action for defamation under Louisiana law the district court in a nonjury trial granted defendant's motion for involuntary dismissal, Fed.R.Civ.P. 41(b), after plaintiff rested, on the ground that plaintiff had failed to show actual malice as required by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Bartimo v. Horsemen's Benevolent and Protective Association, 592 F.Supp. 1526 (W.D.La.1984). Because we agree that plaintiff failed to carry the heavy burden imposed upon him by Sullivan, we affirm.

I.

In the spring of 1981, defendant Thomas F. Russell, Jr., was a member of the Louisiana Division of the Horsemen's Benevolent and Protective Association (HBPA), a national organization dedicated to the advancement of the interests of racehorse owners, breeders, trainers and others connected with the horse racing business. Plaintiff Vincent J. Bartimo was then President and General Manager of Louisiana Downs Racetrack in Bossier City, Louisiana. That spring Russell and other members of the HBPA, including most of its board of directors, instituted a new publication intended to cure what the local HBPA perceived as shortcomings in the national HBPA publication. Russell volunteered to edit, publish and distribute the new publication, the Racing Journal, with the sponsorship of the HBPA.

The first issue of the new publication, which appeared in October 1981, contained an article entitled "Outrage!", written by Russell. The article described Bartimo's role in the suspension of owner-trainer William I. Fox from racing privileges at Louisiana Downs. The thrust of the article was that Bartimo initiated the disciplinary action in retaliation for Fox's testimony in a trial involving the fixing of certain horse races in New Orleans. Russell's article posited as Bartimo's motive "alleged mafia connections" between him and those accused of fixing the races. More specifically, Russell's article: (1) referred to Bartimo as "alleged Mafia Lieutenant Vincent Bartimo," and "alleged Mafia boss Bartimo"; (2) claimed that Bartimo was "unaffectionately called 'Snake' " in his previous employment in Vermont; (3) alleged that Bartimo had a "partnership with convicted felon Charles E. Roamer II"; (4) charged that Bartimo had stated he would "own the new Racing Commission just like he did the last one"; and (5) stated that Bartimo had threatened to "crush" certain horsemen "like ants." Russell concluded the article with the following charges: "The Mafia has long been known for their ability to 'hit' anyone, usually by gang slayings. If Bartimo gets away with this attempt on 'Billy Fox' his next hit could be--you."

Bartimo then brought this action for defamation against Russell, the HBPA, and the HBPA's insurer, Home Insurance Company. ¹ Louisiana law requires that a plaintiff show the following elements in order to be entitled to recovery: (1) publication; (2) falsity; (3) malice, actual or implied; and (4) resulting injury. Manale v. City of New Orleans, 673 F.2d 122, 125 (5th Cir.1982). New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), heightens the required showing on state of mind to the level of "actual malice" where the allegedly defamatory statements are made about a "public official." Curtis Publishing Co. v. Butts, 388 U.S. 130, 162, 87 S.Ct. 1975, 1995, 18 L.Ed.2d 1094 (1967), extended the Sullivan rule to "public figures." After Bartimo rested his case, the district court dismissed under Rule 41(b) on the ground that he had failed to present evidence sufficient to support a finding of actual malice under Sullivan. The court first found, however, that the defendants had "published" the "Outrage!" article and that the statements about Bartimo in the article were false. 592 F.Supp. at 1530. The court did not reach the issue of resulting injury. Id. Bartimo appeals claiming only that he did indeed sufficiently establish actual malice.

II.

In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, ----, 104 S.Ct. 1949, 1967, 80 L.Ed.2d 502, 526 (1984), we were instructed that appellate courts must exercise independent judgment when reviewing "determination[s] of actual malice in ... case[s] governed by New York Times v. Sullivan." (footnote omitted). Thus, the clearly erroneous standard of Fed.R.Civ.P. 52(a) is set aside in order to safeguard the First Amendment values threatened by a finding that speech caused compensable harm. As the Court stated in Bose:

The requirement of independent appellate review reiterated in New York Times v. Sullivan is a rule of federal constitutional law. It emerged from the exigency of deciding concrete cases; it is law in its purest form under our common law heritage. It reflects a deeply held conviction that judges--and particularly members of this Court--must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of "actual malice."

466 U.S. at ----, 104 S.Ct. at 1965, 80 L.Ed.2d at 523. As regards the review of actual malice determinations, the Court stated the rule of independent review in terms broad, clear and without exception.

Nevertheless, Russell contends that the appropriate standard is that supplied by Rule 52(a) since the rationale underlying the Bose rule of independent review does not obtain in this case. That is, the argument continues, the district court's finding of no actual malice and its dismissal of the plaintiff's defamation claim presents no threat to the First Amendment values defended by Russell and the HBPA. Therefore, Russell concludes, the district court's judgment should be subjected only to the less exacting clearly erroneous standard. We reject the argument.

First, it is not clear to us that the rationale of Bose is inapplicable here, for definition of First Amendment protections requires inclusion as well as exclusion and the former is no less a judicial function merely because it does not pose a direct threat to First Amendment values. Including speech within the protected category requires no less careful an evaluation of constitutionally significant facts than excluding such speech. Cf. Bose, 466 U.S. at ----, 104 S.Ct. at 1961, 80 L.Ed.2d at 519. In addition, Russell's argument fails to account for the Supreme Court's broad language in Bose, which purported to make no distinction whatever between cases in which judgment was in favor of the alleged defamer and those in which judgment was in favor of the alleged defamed. We think if the Court had intended to make such a distinction it would have so limited its holding. The notion that such evaluations fall within the peculiar province of the judicial function is critical to the rule of Bose.

Moreover, prior to Bose the Supreme Court has, under the authority of Sullivan, engaged in independent review of a trial court's finding of no actual malice. In Associated Press v. Walker, 388 U.S. at 140-42, 87 S.Ct. at 1983-84, the companion case to Curtis Publishing Co. v. Butts, the trial court had granted judgment notwithstanding a jury verdict for punitive damages on the ground that the evidence supported a finding of no more than ordinary negligence on the defendant's part. Id. Both the Court of Appeals and the Supreme Court affirmed, the latter undertaking "to face for [them]selves the question whether there is sufficient evidence to support the finding" of actual malice. Id. at 158, 87 S.Ct. at 1993. ²

Finally, no court of appeals has recognized the distinction for which Russell contends. Cf. Levine v. CMP Publications, Inc., 738 F.2d 660, 672-73 n. 19 (5th Cir.1984) (Bose standard inapplicable to review of jury's finding that statements were false), reh'g denied, 753 F.2d 1341 (1985). On the contrary, the Tenth Circuit has, albeit without discussing the argument Russell advances here, undertaken independent review of a district court's judgment for defendants on the ground that no actual malice was demonstrated. Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323, 1326 (10th Cir.1984). Most recently, the D.C. Circuit has done likewise in reviewing a district court's judgment n.o.v. in favor of defendants on the ground that actual malice was not sufficiently demonstrated. Tavoulareas v. Piro, 759 F.2d 90, 107 (D.C.Cir.1985). We follow the lead of Hardin and Tavoulareas for the reasons expressed above and because we cannot see the sense of applying "a rule of federal constitutional law," Bose, 466 U.S. at ----, 104 S.Ct. at 1965, 80 L.Ed.2d at 523, only if the plaintiff prevails at trial. ³

We therefore undertake independently to review the entire record...