Elder v. Gaffney Ledger

• Decision Date: 19 June 2000
• Docket Number: No. 25153.,25153.
• Citation: 533 S.E.2d 899,341 S.C. 108
• Parties: Wayne ELDER, Respondent, v. The GAFFNEY LEDGER, Petitioner.
• Court: South Carolina Supreme Court

341 S.C. 108

533 S.E.2d 899

Wayne ELDER, Respondent, v. The GAFFNEY LEDGER, Petitioner.

No. 25153.

Supreme Court of South Carolina.

Heard March 22, 2000.

Decided June 19, 2000.

Rehearing Denied July 20, 2000.

Jay Bender and Charles E. Baker, of Baker, Ravenel and Bender, of Columbia, for petitioner.

Patrick E. Knie, of Spartanburg, and Kenneth L. Holland, of Gaffney, for respondent.

WALLER, Justice:

We granted certiorari to review the Court of Appeals' opinion in Elder v. Gaffney Ledger, 333 S.C. 651, 511 S.E.2d 383 (Ct.App.1999). We reverse.

FACTS

This is a defamation case. Respondent Wayne Elder, was Chief of Police for the town of Blacksburg.¹ On May 17, 1995, Petitioner, the Gaffney Ledger (Newspaper), printed the following in its "What's Your Beef?"² column:

Are the drug dealers paying?

I'd like to know what the people think about this. The Chief of the Blacksburg Police Department knows that these people are selling drugs and they have been selling them many years and he hasn't done anything about it. Now I often wonder if the drug dealers are paying the Chief of Blacksburg. And too, I would like to know why the Gaffney police have to go over there and work in the police department and do their work because they work here in Cherokee County. Don't they have enough money over there to hire Blacksburg police to do their jobs?

The editor of the paper, Cody Sossamon, made the decision to publish the above item which was phoned into the Newspaper by an anonymous caller. Although Sossamon wrote the caption, he testified he did not intend to suggest an answer to readers. However, Sossamon testified he himself believed drug dealers could be paying the chief.

After publication of the column, Elder brought this libel action. The jury awarded him $10,000 in actual damages and $300,000 in punitive damages. The Court of Appeals affirmed.

ISSUE³

The sole issue we need address is whether there was sufficient evidence of constitutional actual malice to withstand Newspaper's motion for directed verdict.

DISCUSSION

In defamation actions involving a "public official" or "public figure," the plaintiff must prove the statement was made with "actual malice," i.e., with either knowledge that it was false or reckless disregard for its truth. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). See also Holtzscheiter v. Thomson News, Inc., 332 S.C. 502, 506 S.E.2d 497 (1998) (Toal, J., concurring)

. Whether the evidence is sufficient to support a finding of actual malice is a question of law. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). When reviewing an actual malice determination, this Court is obligated to independently examine the entire record to determine whether the evidence sufficiently supports a finding of actual malice. Miller v. City of West Columbia, 322 S.C. 224, 471 S.E.2d 683 (1996).

Actual malice is a subjective standard testing the publisher's good faith belief in the truth of his or her statements. Peeler v. Spartan Radiocasting, Inc., 324 S.C. 261, 478 S.E.2d 282 (1996). The constitutional actual malice standard requires a public official to prove by clear and convincing evidence that the defamatory falsehood was made with the knowledge of its falsity or with reckless disregard for its truth. New York Times Co. v. Sullivan, supra; Botchie v. O'Dowd,

315 S.C. 126, 432 S.E.2d 458 (1993). A "reckless disregard" for the truth, however, requires more than a departure from reasonably prudent conduct. "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (emphasis supplied). There must be evidence the defendant had a "high degree of awareness of ... probable falsity." Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (emphasis supplied).

Failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. See St. Amant, supra; Hunt v. Liberty Lobby, 720 F.2d 631, 642 (11th Cir.1983)

; Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (6th Cir.1982). Actual malice may be present, however, where one fails to investigate and there are obvious reasons to doubt the veracity of the informant. St. Amant, supra.

The actual malice standard is not satisfied merely through a showing of ill will or "malice" in the ordinary sense of the term. Harte-Hanks, 491 U.S. at 666,109 S.Ct. 2678. It is insufficient to show the defendant made an editorial choice or simply failed to investigate or verify information; there must be evidence at least that the defendant purposefully avoided the truth. Gaylord Broadcasting v. Francis, 7 S.W.3d 279 (Tex.App.1999); ABC, Inc. v. Gill, 6 S.W.3d 19 (Tex.App.1999). Erasure of a tape recording when done as part of a routine practice is not evidence of actual malice. Peeler v. Spartan Radiocasting, 324 S.C. 261, 478 S.E.2d 282 (1996). Although evidence concerning motive or care may bear some relation to the actual malice inquiry; however, "courts must be careful not to place too much reliance on such factors." Harte-Hanks, 491 U.S. at 668,109 S.Ct. 2678.

The evidence relied upon in this case to demonstrate actual malice is as follows: 1) that Sossamon failed to investigate or verify the information left by the anonymous caller; 2) that the phone recording of the anonymous caller was "erased" by Newspaper; 3) that Sossamon pled guilty to manufacturing marijuana in 1991; and 4) that Sossamon had been "rude" to Chief Elder's wife on one occasion when she was at the Newspaper to place an ad for her husband. This evidence is patently insufficient to demonstrate Sossamon in fact entertained serious doubts as to the truth of the publication.⁴

As to the first item, the failure to investigate, while there was expert testimony that reporters verify the accuracy of news articles, and Sossamon testified he did not have sufficient evidence to develop a news story that Elder was being bribed, there was no testimony that the same verification procedures apply to editorials or opinion columns. In fact, the experts called by Elder did not write editorials. The only testimony with respect to columns such as "What's Your Beef?" came from Sossamon who testified that, although some newspapers have a policy against publishing anonymous items, he knew of a number which do, in fact, publish such items. Moreover, as noted previously, a mere failure to investigate is not tantamount to actual malice. St. Amant, supra.

The fact that Sossamon did not investigate the anonymous phone call simply does not demonstrate that he "purposefully avoided" the truth.⁵

The Court of Appeals also suggested that the failure of Newspaper to introduce the tape of the phone call was evidence of the possibility that Editor manufactured the entire piece. Contrary to the Court of Appeals' insinuation, there was simply no evidence that Sossamon fabricated the phone call, or that the tape was non-existent.⁶ In relying upon the absence of the tape to establish evidence of Sossamon's possible motive, the Court of Appeals effectually switched the burden to Newspaper to introduce the recording. This was error. See Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977)

(burden to prove his case is always on plaintiff). Given that counsel for Elder was in possession of a copy of the tape, and its authenticity was not an issue at trial, we find the Court of Appeals erred in relying upon its absence to demonstrate an inference of malice.⁷

The Court of Appeals also cited the fact that Sossamon had a 1991 conviction for manufacturing marijuana, concluding that he may have been motivated by his own problems with law enforcement to discredit Elder. In our view, the Court of Appeals placed undue emphasis on this conviction. There was no evidence Elder had anything whatsoever to do with Sossamon's arrest; on the contrary, it appears from the record that Sossamon was arrested by a Detective Burgess. Moreover, Sossamon repeatedly testified that he owed his life to the fact that he was arrested, and in fact had called and thanked the Sheriff who had arrested him. In sum, there was simply no testimony linking Sossamon's 1991 arrest to any ill motive toward Chief Elder such that its relevance in this case is questionable. With regard to Mrs. Elder's testimony that Sossamon was "rude" to her, although we agree with the Court of Appeals that evidence of ill will may, in some circumstances, be relevant to demonstrate motive, we fail to see the relevance of Mrs. Elder's testimony in this case. The mere fact that Sossamon spoke to her in a "very smart, rude" manner on one occasion more than a year prior to the publication of the column is simply irrelevant to demonstrate malice by Sossamon toward Elder. It is possible Sossamon is generally a rude person, or was in a bad mood on the day in question, or perhaps has a dislike of Mrs. Elder. Accordingly, we find Mrs. Elder's testimony irrelevant.

Moreover, even if Sossamon's conviction and his "rudeness" toward Mrs. Elder are somehow relevant to a determination of "ill will" toward Chief Elder, they are insufficient to demonstrate the requisite constitutional actual malice in publishing the item. As noted by the United States Supreme Court, the actual malice standard is not satisfied merely through a showing of ill will or "malice" in the ordinary sense of the term. Harte-Hanks, supra, 491 U.S. at 666, 109 S.Ct. at 2685, n. 7 (phrase "actual malice" is unfortunately confusing in that it has nothing to do with bad motive or ill will). See also Chapin v. Knight-Ridder, 993 F.2d 1087, 1092, n. 5 (4th Cir.1993)

("actual malice" does not refer to "ill will"); ...