Eastwood v. National Enquirer, Inc., s. 95-56758

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: KOZINSKI
• Citation: 123 F.3d 1249
• Parties: 25 Media L. Rep. 2198, 97 Cal. Daily Op. Serv. 6761, 97 Daily Journal D.A.R. 11,055 Clint EASTWOOD, Plaintiff-Appellee, v. NATIONAL ENQUIRER, INC., Defendant-Appellant. Clint EASTWOOD, Plaintiff-Appellant, v. NATIONAL ENQUIRER, INC., Defendant-Appellee.
• Docket Number: 96-55560,Nos. 95-56758,s. 95-56758
• Decision Date: 25 August 1997

Page 1249

123 F.3d 1249 25 Media L. Rep. 2198, 97 Cal. Daily Op. Serv. 6761,
97 Daily Journal D.A.R. 11,055 Clint EASTWOOD, Plaintiff-Appellee,
v.
NATIONAL ENQUIRER, INC., Defendant-Appellant.
Clint EASTWOOD, Plaintiff-Appellant,
v.
NATIONAL ENQUIRER, INC., Defendant-Appellee. Nos. 95-56758, 96-55560. United States Court of Appeals,
Ninth Circuit. Argued and Submitted March 3, 1997.
Decided Aug. 25, 1997.

Page 1250

Gerson A. Zweifach, Paul Martin Wolff, Steven M. Farina, Paul B. Gaffney, Williams & Connolly, Washington, DC; Henry R. Shields, Irell & Manella, Los Angeles, CA, for defendant-appellant-defendant-appellee National Enquirer, Inc.

Raymond C. Fisher, Kenneth L. Chernof, Edward P. Lazarus, Heather A. MacTavish, Heller Ehrman White & McAuliffe, Los Angeles, CA, for plaintiff-appellee-plaintiff-appellant Clint Eastwood.

Appeals from the United States District Court for the Central District of California; John G. Davies, District Judge, Presiding. D.C. No. CV-94-01404-JGD.

Before: FARRIS, KOZINSKI and T.G. NELSON, Circuit Judges.

KOZINSKI, Circuit Judge.

Did defendant falsely represent that plaintiff had given it an interview? Or did it avoid learning that the purported interview was a fabrication? And was the jury right in finding "actual malice"?

Enquiring judges want to know.

* * *

On December 21, 1993, the front page of the National Enquirer touted an "Exclusive Interview" with Clint Eastwood. See Figure 1. Under the headline "Clint Eastwood at 63: Being a new dad has made my day," ¹ the "interview" featured "quotes" from Eastwood about his relationship with actress Frances Fisher ("I propose marriage to her from time to time and sometimes she says yes and sometimes she says no."), their new baby ("Frances and I ... take turns getting up [in the middle of the night].") and his career ("For me to be ... wiping out tons of people, that's over. I think I'll leave that for the newer guys on the scene."). The by-line of Don Gentile, an Enquirer assistant editor, and the inclusion of such phrases as "[Eastwood] said with a chuckle" suggested that the writer and the movie star had conversed. See Figure 2.

In fact, Eastwood never spoke to the Enquirer; the interview, he claims, is a fabrication. In a suit in Federal District Court, Eastwood alleged that the article misrepresented its origin, association and/or endorsement in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and invaded his privacy and misappropriated his name, likeness and personality under Cal. Civ.Code § 3344 and California common law. The gist of the complaint is that Eastwood's reputation was damaged by the suggestion that he would grant an interview to a sensationalist tabloid.

After a seven-day trial and four days of deliberation, the jury returned a unanimous verdict for Eastwood; it awarded him $150,000. ² Pursuant to the Lanham Act and California

Page 1251

law, Judge Davies awarded Eastwood $653,156 in attorney's fees but denied $185,163 in costs, including expert witness fees. The Enquirer appeals the verdict and the fee award. Eastwood cross-appeals the denial of expert fees and other costs.

I.

Under the rule first announced in New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), a public figure can recover damages from a news organization, for harms perpetrated by its reporting, only by proving "actual malice." This phrase does not mean

ill will or "malice" in the ordinary sense of the term.... Actual malice, instead, requires ... that the statements were made with a reckless disregard for the truth. And although the concept of "reckless disregard" "cannot be fully encompassed in one infallible definition," we have made clear that the defendant must have made [the decision to publish] with a "high degree of awareness of ... probable falsity," or must have "entertained serious doubts as to the truth of his publication."

Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 666-67, 109 S.Ct. 2678, 2685, 105 L.Ed.2d 562 (1989) (citations and footnote omitted) (quoting St. Amant v. Thompson, 390 U.S. 727, 730, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968)). Thus Eastwood was entitled to prevail if the Enquirer knowingly made a false statement that hurt his reputation.

Alternatively, he could prevail if the Enquirer had "obvious reasons to doubt the veracity" of its reporting, St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326, but engaged in "purposeful avoidance of the truth." Harte-Hanks, 491 U.S. at 692, 109 S.Ct. at 2698; cf. United States v. Jewell, 532 F.2d 697, 700 (9th Cir.1976) (en banc) (willful blindness tantamount to knowledge). Mere negligence would not be enough. "Even an extreme departure from accepted professional standards of journalism will not suffice to establish actual malice; nor will any other departure from reasonably prudent conduct, including the failure to investigate before publishing." Newton v. National Broadcasting Co., 930 F.2d 662, 669 (9th Cir.1990); see also St. Amant, 390 U.S. at 733, 88 S.Ct. at 1326 ("Failure to investigate does not in itself establish bad faith.").

The jury here was properly instructed. ³ Nonetheless, we must satisfy ourselves that "actual malice" was proven. This is because " '[j]udges, as expositors of the Constitution,' have a duty to 'independently decide whether the evidence in the record is sufficient to [overcome] the constitutional ... [bar to the entry of any judgment] ... not supported by clear and convincing proof of "actual malice." ' " Harte-Hanks, 491 U.S. at 686, 109 S.Ct. at 2695 (quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 511, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984)); see also Bose at 508 n. 27, 104 S.Ct. at 1964 n. 27 (appellate courts have "an obligation to test challenged judgments against the guarantees of the [First Amendment] ... and in doing so ... cannot avoid making an independent ... judgment on the facts of the case.") (internal quotations omitted).

Page 1252

In conducting our review, it is not enough for us to determine that a reasonable jury could have found for the plaintiff--a kind of sufficiency-of-the-evidence test, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), permitting us to affirm even though we would have reached a different conclusion. Rather, "First Amendment questions of 'constitutional fact' compel [us to conduct a] de novo review." Bose, 466 U.S. at 508 n. 27, 104 S.Ct. at 1964 n. 27. We ourselves must be convinced that the defendant acted with malice.

This does not mean we give jury findings no weight; on questions of credibility, which the jury is uniquely qualified to answer, we defer. See Newton, 930 F.2d at 671 ("[W]e read Bose and Harte-Hanks as creating a 'credibility exception' to the New York Times rule of independent review."). Thus we have described our role as simultaneously " 'examin[ing] for ourselves' the factual record in full" and "accord[ing] credibility determinations the special deference to which they are entitled." Newton, 930 F.2d at 671 (quoting New York Times, 376 U.S. at 285, 84 S.Ct. at 728-29). Put another way, we must figure out, as best we can from the cold record, which evidence the jury accepted as credible, and which it discarded. Then we must determine whether the believed evidence establishes actual malice.

This is no doubt a difficult business. Without a transcript of the jury's deliberations, we can only guess which facts (aside from those essential to the verdict) it must have believed. ⁴ In another case, this task might well prove impossible, forcing us to rethink our deferential-yet-de-novo approach. Cf. Harte-Hanks, 491 U.S. at 700, 109 S.Ct. at 2702 (Scalia, J., concurring) ("I would ... mak[e] our independent assessment of whether malice was clearly and convincingly proved on the assumption that the jury made all the supportive findings it reasonably could have made."). Here, however, enough key facts are undisputed that we can reach a conclusion without interviewing--or ignoring--the jury. See note 12 infra.

The purpose of our review is to satisfy ourselves that plaintiff proved malice by clear and convincing evidence, Harte-Hanks, 491 U.S. at 686, 109 S.Ct. at 2695 (quoting Bose, 466 U.S. at 511, 104 S.Ct. at 1965), which we have described as a "heavy burden," United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir.1985), far in excess of the preponderance sufficient for most civil litigation. ⁵ In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the Court reasoned that the important First Amendment interests present in suits against news organizations justified this heightened burden of proof. "[T]he possibility of ... error [in such cases] would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate." Id. at 50, 91 S.Ct. at 1823. This is no less true if the publication is a tabloid; the size of the page does not diminish the constitutional protection afforded the content. See Desnick v. American Broadcasting Companies, 44 F.3d 1345, 1355 (7th Cir.1995) (Posner, C.J.).

Nonetheless, even a properly instructed juror may have difficulty gauging whether a proposition was proven by clear and convincing evidence, or merely by a preponderance.

Page 1253

See Tippett v. Maryland, 436 F.2d 1153, 1158-59 (4th Cir.1971) ("However meaningful the distinction [between clear and convincing evidence and a preponderance] may be to us as judges, ... it is greatly to be doubted that a jury's verdict would ever be influenced by the choice of one standard or the other."). The task is somewhat easier for judges. See United States v. Fatico, 458 F.Supp. 388, 410 (E.D.N.Y.1978) (judges, in survey, in general agreement on interpretation of burdens of proof). Thus it falls to us to decide if the heightened standard was met. If the jury could only have found "actual malice" by a preponderance, we must...