DeRoburt v. Gannett Co., Inc.

• Decision Date: 13 February 1981
• Docket Number: Civ. No. 78-0375.
• Parties: Hammer DeROBURT, Plaintiff, v. GANNETT CO., INC., a Delaware Corporation, and Guam Publications, Inc., a Hawaii Corporation, both d/b/a Pacific Daily News, Defendants.
• Court: U.S. District Court — District of Hawaii

507 F. Supp. 880

Hammer DeROBURT, Plaintiff, v. GANNETT CO., INC., a Delaware Corporation, and Guam Publications, Inc., a Hawaii Corporation, both d/b/a Pacific Daily News, Defendants.

Civ. No. 78-0375.

United States District Court, D. Hawaii.

February 13, 1981.

Joseph T. Kiefer, Genevieve S. Richardson, Carlsmith, Carlsmith, Wichman & Case, Honolulu, Hawaii, George M. Allen, Majuro, Marshall Islands, Donald C. Williams, Agana, Guam, for plaintiff.

David J. Dezzani, Goodsill, Anderson & Quinn, Honolulu, Hawaii, for defendants.

DECISION AND ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL DISCLOSURE OF SOURCES

SAMUEL P. KING, Chief Judge.

Plaintiff Hammer DeRoburt filed this suit against Gannett Company, Inc., and its subsidiary, Guam Publications, Inc., on October 2, 1978. Jurisdiction is premised on diversity of citizenship: Gannett is a Delaware corporation with its principal place of business in New York; Guam Publications is a Hawaii corporation with its principal place of business in Guam; DeRoburt is a citizen of Nauru.¹

Plaintiff alleges defendants have libeled him in two articles published in the Pacific Daily News, a daily newspaper printed in Guam by Guam Publications. A May 30, 1978, Pacific Daily News article, written by Cisco Uludong and entitled "Marshalls Separatist Movement Gets Secret Funds from Nauru," reported that President DeRoburt personally delivered to the Marshall Islands Political Status Commission a loan made by Nauru in support of separation of the Marshall Islands from Micronesia. The second story, written by Paul Addison and published on June 29, 1978, in the Pacific Daily News, was entitled "Nauru Officials Admit Lending Separatists' Loan"; it reported the angry reactions of Nauru officials to the first story, as well as repeating the statements made in that story. Plaintiff DeRoburt alleges that the stories falsely and maliciously accused him of committing serious crimes under Nauru law and of interfering with the internal political affairs of a foreign nation in violation of accepted standards of international diplomacy. His complaint also includes an allegation that the stories were published by defendants "with actual malice, that is, with actual knowledge of their falsity and/or with reckless disregard for whether they were false or not."²

On August 31, 1979, this Court, in its Order Denying Motions to Dismiss and for Summary Judgment, ruled that choice of law principles dictate application of the law of Nauru, but only insofar as it does not conflict with the First Amendment, as delineated by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny. DeRoburt v. Gannett Co., Inc., 83 F.R.D. 574, 579-83 (D.Hawaii 1979). On defendants' motion for summary judgment based on the New York Times requirement of "actual malice" in a libel suit brought by a "public official" or "public figure,"³ this Court ruled that plaintiff presented a genuine issue of fact as to falsity of the allegedly defamatory material published by defendants and as to "`actual malice' — that is, whether the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not," New York Times, 376 U.S. at 280, 84 S.Ct. at 726.⁴

The case is presently before this Court on plaintiff's July 28, 1980, Motion to Compel Disclosure of Sources, pursuant to Rule 37, Fed.R.Civ.P. Plaintiff seeks disclosure of the reporters' sources for the two news stories on the grounds that that information is relevant and is not privileged, arguing that he is severely hampered in meeting his burden of showing "actual malice" when he is denied critical information from which defendants' state of mind may be inferred. Defendants' arguments against disclosure the Court finds unconvincing.

The law of libel has changed dramatically in the last two decades, and the pattern of discovery in libel litigation must change with it. As Justice White observed in Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979):

Although defamation litigation, including suits against the press, is an ancient phenomenon, it is true that our cases from New York Times to Gertz have considerably changed the profile of such cases. In years gone by, plaintiffs made out a prima facie case by proving the damaging publication. Truth and privilege were defenses. Intent, motive, and malice were not necessarily involved except to counter qualified privilege or to prove exemplary damages. The plaintiff's burden is now considerably expanded. In every or almost every case, the plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability on the part of the publisher. If plaintiffs in consequence now resort to more discovery, it would not be surprising ....

Id. at 175-76, 99 S.Ct. at 1648. In the course of his dissent in Herbert, Justice Stewart set out the elements of a cause of action for libel brought by a public official or public figure:

Under the constitutional restrictions imposed by New York Times and its progeny, a plaintiff who is a public official or public figure can recover from a publisher for a defamatory statement upon convincingly clear proof of the following elements:

(1) the statement was published by the defendant,

(2) the statement defamed the plaintiff,

(3) the defamation was untrue, and

(4) the defendant knew the defamatory statement was untrue, or published it in reckless disregard of its truth or falsity.

441 U.S. at 199-200, 99 S.Ct. at 1661 (Stewart, J., dissenting) (citations omitted).⁵ The public official or public figure now has the additional requirement of showing "actual malice" with "convincing clarity," New York Times, 376 U.S. at 285-86, 84 S.Ct. at 728. If the plaintiff cannot show that the defendant knew the defamatory statement was false, he must show that the defendant published it with reckless disregard of its truth or falsity. This "subjective awareness of probable falsity," Gertz v. Robert Welch, Inc., 418 U.S. 323, 335 n.6, 94 S.Ct. 2997, 3004, n.6, 41 L.Ed.2d 789 (1974), the Court defined in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), as existing when "the defendant in fact entertained serious doubts as to the truth of his publication," id. at 731, 88 S.Ct. at 1325, evidence of which may be that "there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports," id. at 732, 88 S.Ct. at 1326. If the plaintiff is denied disclosure of the defendant's sources, this avenue of showing "actual malice" with "convincing clarity" is all but closed to him; the denial would "erect an impenetrable barrier to the plaintiff's use of such evidence on his side of the case . . .," Herbert, 441 U.S. at 170, 99 S.Ct. at 1646.

Plaintiff DeRoburt's attempts to discover the sources, if any, of the allegedly libelous news stories written by defendants' reporters and published by defendants have met with assertions of a "newsman's privilege" by the reporters and editors plaintiff has deposed.⁶ First Amendment protection of a free press underlies the newsman's privilege to refuse to reveal news sources under certain circumstances; however, the privilege is a limited one and may come into conflict with other constitutional values. In Carey v. Hume, 492 F.2d 631 (D.C.Cir.), cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974), a civil libel action in which the public figure plaintiff sought to compel the disclosure of a newsman's sources, the D.C. Circuit observed the tension between the newsman's privilege and the New York Times "actual malice" rule:

A civil libel plaintiff who is a public figure must show that the statement at issue was published with actual malice or in reckless disregard of the truth. In the context of an asserted newsman's privilege to protect confidential news sources, the Sullivan rule is a source of tension. On the one hand, the Court's concern that the spectre of potential libel actions might have an inhibiting effect on the exercise of press freedom militates against compulsory disclosure of sources. Contrarily, the heavy burden of proof imposed upon the plaintiff in such a case will often make discovery of confidential sources critical to any hope of carrying that burden.

Id. at 634 (footnote omitted). It is true that New York Times and its progeny expanded the protection afforded newsmen by the First Amendment. "These cases rested primarily on the conviction that the common law of libel gave insufficient protection to the First Amendment guarantees of freedom of speech and freedom of press and that to avoid self-censorship it was essential that liability for damages be conditioned on the specified showing of culpable conduct by those who publish damaging falsehood." Herbert, 441 U.S. at 159, 99 S.Ct. at 1640. However, when the Court in New York Times gave newsmen a "privilege for criticism of official conduct," 376 U.S. at 282, 84 S.Ct. at 727, it was careful to note that "the privilege immunizing honest misstatements of fact is ... a `conditional' privilege as distinguished from an `absolute' privilege ...," id. at 282 n.21, 84 S.Ct. at 727 n.21.⁷ Furthermore, the New York Times line of cases did not restrict the plaintiff's discovery; rather, those cases "made it essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendants." Herbert, 441 U.S. at 160, 99 S.Ct. at 1641.

The media defendant cannot have it both ways: he cannot enjoy the protection afforded by the heavy burden imposed upon the public official plaintiff by New York Times and at the same time enjoy a privilege that prevents the plaintiff from obtaining the evidence necessary to carry that burden. Were the media defendant allowed to have it both ways, he would have absolute license, and the libel plaintiff would have no recourse in the courts. As the Court stated in Herbert, "Only...