Cervantes v. Time, Inc., 71-1555.

• Citation: 464 F.2d 986
• Decision Date: 20 July 1972
• Docket Number: No. 71-1555.,71-1555.
• Parties: Alfonso J. CERVANTES, Appellant, v. TIME, INC., and Denny Walsh, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

464 F.2d 986 (1972)

Alfonso J. CERVANTES, Appellant, v. TIME, INC., and Denny Walsh, Appellees.

No. 71-1555.

United States Court of Appeals, Eighth Circuit.

Submitted April 11, 1972.

Decided July 20, 1972.

Rehearing Denied August 17, 1972.

Mortimer A. Rosecan, Rosecan & Popkin, St. Louis, Mo., for appellant.

Harold Medina, Jr., New York City, and D. Jeff Lance, Robert S. Allen, St. Louis, Mo., for appellees.

Before VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Alfonso J. Cervantes is the mayor of Saint Louis, Missouri. In May 1970 there appeared in appellee's Life magazine an article of 87 paragraphs accusing the mayor of maintaining "business and personal ties with the gangsters that operate in his city." The article was entitled "The Mayor, The Mob and The Lawyer," and captioned with a comment explaining: "Both the mayor and his new crime commissioner have personal ties to the underworld." The substance of the article describes in some detail the relationship said to exist between Mayor Cervantes, Morris Shenker,¹ a Saint Louis criminal lawyer and then the mayor's appointee "to head the newly formed Commission on Crime and Law Enforcement," and Tony Sansone² who, according to the article, is "the mayor's liaison with the two mobs that run the St. Louis underworld."

Mayor Cervantes instituted this diversity libel action in the United States District Court for the Eastern District of Missouri seeking $2,000,000 compensatory and $10,000,000 punitive damages. He sought relief against and named as defendants the publisher of Life magazine and the reporter whose investigative efforts produced grist for the article.³ He alleged in his amended complaint that 4 paragraphs of the article contained false statements which were authored, published, and communicated with knowledge of their falsity or, alternatively, with reckless disregard as to their truth.⁴ The defendants answered raising both the defense of truth and constitutional privilege.

The mayor undertook extensive pre-trial discovery. He deposed the reporter who testified that he gathered information which formed the basis for most of the story from informants within the Federal Bureau of Investigation and within the United States Department of Justice. He revealed that these informants furnished him copies of confidential reports and orally transmitted additional and supplemental corroboratory information from which he constructed the events embodied in 3 of the 4 disputed paragraphs, but he refused, under repeated questioning, to divulge the names of the individuals from whom he extracted this information. That refusal was bottomed on the theories (i) that to assume a contrary position would be to subject his informants to retaliation or reprisals and physical danger; (ii) that compulsory disclosure of confidential sources would violate the First Amendment's freedom of the press by impeding the dissemination of news which can be obtained only if he, as a professional journalist, may effectively guarantee anonymity of the source; and (iii) that he, as a professional journalist and as a resident and citizen of the State of New York, possesses a statutory reportorial privilege to withhold the source of news coming into his possession.⁵ The mayor promptly moved for an order to compel disclosure of the identity of the informants. The defendants responded by moving for summary judgment on the ground that each had acted in good faith in publishing the article and that both believed all of the allegedly defamatory statements to be true.

The District Court (The Honorable James H. Meredith, Chief Judge), did not reach the merits of the motion to compel. However, on the basis of a well-developed record consisting of affidavits, depositions, and other documentary evidence, it entered summary judgment for the defendants on the grounds that neither defendant had knowledge of falsity, that neither entertained serious doubts as to the truth of any statement in the article, and that neither acted with reckless disregard for truth or falsity. 330 F.Supp. 936, 940 (1970). This appeal followed.

I

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), it was established that the First and Fourteenth Amendments' protection of speech and the press restrict the enforcement of State libel laws. Times accordingly held that a public official may recover damages "for a defamatory falsehood relating to his official conduct" only if he "proves that the statement was made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 279-280, 84 S.Ct. at 726. The holding of Times was reaffirmed and the reckless disregard aspect of its actual malice standard amplified in St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L.Ed.2d 262 (1968). The Court said with respect to this aspect of the constitutional standard:

"Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." 390 U.S., at 731, 88 S.Ct., at 1325.

It is clear, finally, that the conditional privilege granted by Times to false defamatory expression no longer is confined to statements concerning public officials. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), holds that constitutional protection is to be extended to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." Id., at 44, 91 S.Ct., at 1820. Thus, "the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern." 403 U.S., at 44, 91 S.Ct., at 1820.

Since the statements in suit are conceded by all to touch and concern issues of public or general concern, it is clear that Mayor Cervantes cannot, absent a showing of actual malice, recover damages under the Missouri law of defamation.⁶ The District Court concluded, and the defendants here suggest, that because substantial editorial effort was expended to secure independent corroboration of the published materials, the mayor cannot meet the applicable constitutional standard of proof.

II

Without question the article fashions a broadside attack on the ability of Mayor Cervantes to perform responsibly in the governmental domain. It directs sharp and coarse comment both toward his official conduct and also his fitness for office. Indeed, the entire thrust of the article's message is that the mayor, despite public pronouncements to the contrary, seemingly possesses substantial personal and business interest in the perpetuation of profitable criminal activity in this city. Yet in the face of this massive attack on his fitness to occupy his important office, the mayor takes issue with but 4 of the 87 paragraphs comprising the article.⁷ So far as the vast amount of the other material is concerned, its truth is either admitted or not explicitly denied. Thus, we are concerned here with only the comparatively few words said by the mayor to be false and defamatory, and as to these, he acknowledges that the burden is his to establish with "convincing clarity" deliberate or reckless error. Times, supra, 376 U.S. at 285-286, 84 S.Ct. 710, 11 L.Ed.2d 686.

Central to the mayor's appellate attack is his contention that he cannot possibly meet his burden of proof if the reporter is allowed to hide behind anonymous news sources. He argues that in a libel case of this kind the identity of a reporter's sources is absolutely essential to the successful outcome of the lawsuit. His arguments in favor of compulsory disclosure may be summarized as follows: a disclosure enables the plaintiff to scrutinize the accuracy and balance of the defendant's reporting and editorial processes; b through disclosure it is possible to derive an accurate and comprehensive understanding of the factual data forming the predicate for the news story in suit; c disclosure assists successful determination of the extent to which independent verification of the published materials was secured; and d disclosure is the sole means by which a libeled plaintiff can effectively test the credibility of the news source, thereby determining whether it can be said that the particular source is a perjurer, a well-known libeler, or a person of such character that, if called as a witness, any jury would likely conclude that a publisher relying on such a person's information does so with reckless disregard for truth or falsity. Moreover, these particularized considerations are said to assume extraordinary importance when, as in this case, the information forming the core of the publication by its nature is not available to the public generally and is obtainable only from governmental employees who are under a duty not to reveal it to outsiders.⁸ On the basis of these considerations, the mayor advanced arguments in the District Court that it should not reach the defense motion for summary judgment until he was given the opportunity to depose and examine the Federal Bureau of Investigation and Department of Justice employees who supplied Life's reporter with confidential reports and corroboratory materials used in connection with the article. The failure of the District Court to respond favorably to this plea is urged as error here.

These arguments in behalf of compulsory disclosure of confidential news sources, when urged on behalf of a public official whose reputation and integrity have been assaulted on the basis of information supplied by those...