Elder v. Gaffney Ledger, Inc.

• Court: South Carolina Court of Appeals
• Writing for the Court: HEARN.
• Citation: Elder v. Gaffney Ledger, Inc., 511 S.E.2d 383, 333 S.C. 651 (S.C. App. 1999)
• Decision Date: 04 January 1999
• Docket Number: No. 2921.,2921.
• Parties: Wayne ELDER, Respondent, v. The GAFFNEY LEDGER, INC., Appellant.

333 S.C. 651

511 S.E.2d 383

Wayne ELDER, Respondent, v. The GAFFNEY LEDGER, INC., Appellant.

No. 2921.

Court of Appeals of South Carolina.

Heard November 5, 1998.

Decided January 4, 1999.

Rehearing Denied March 27, 1999.

Jay Bender and Charles E. Baker, both of Baker, Barwick, Ravenel & Bender, of Columbia, for appellant.

Patrick E. Knie, of Knie, White & Anthony, of Spartanburg; and Kenneth L. Holland, of Gaffney, for respondent.

HEARN, Judge:

Wayne Elder, the former Chief of Police for the Town of Blacksburg, brought this action for libel against The Gaffney Ledger, Inc. (Publisher), which publishes The Gaffney Ledger. The jury awarded Elder $10,000 in actual damages and $300,000 in punitive damages. Publisher appeals, challenging (1) the denial of its motions for directed verdict and judgment notwithstanding the verdict, (2) the admission of certain testimony from Elder's wife, and (3) the denial of its motion for a new trial based upon the size of the punitive damage award. We affirm.

FACTS

On May 17, 1995, The Gaffney Ledger printed the following in its "What's Your Beef?" 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?

According to Cody Sossamon (Editor), the executive editor of the newspaper, the "What's Your Beef column is a forum whereby members of the public, who may remain anonymous, can express their opinions by placing telephone calls into a computer answering machine. The calls are transcribed, and Editor decides which calls to publish. The column appears on the opinion page of the paper.

Elder testified he saw the May 17, 1995, column and contacted Editor to try to find out who was responsible for the allegations. Editor advised Elder the tape of the telephone call had been erased and the identity of the caller was unknown. Thereafter, Editor wrote Elder a letter extending an opportunity to him to respond to the allegations, but Elder declined to do so. Elder brought this defamation action, alleging the column and headline implied he was taking bribes from drug dealers.

Janice Durham-Baynes, a former crime reporter for The Gaffney Ledger from August 1990 to June 1994, testified she was expected to verify information used in news articles. She stated she would not have written a news article based solely on an anonymous phone call.

Several current or former law enforcement officials testified on behalf of Elder. They stated Elder was aggressive in his efforts toward drug enforcement and that there was no indication he was taking bribes from drug dealers. The Administrator for the Town of Blacksburg testified she was aware of Elder's efforts to secure grants to upgrade drug-related law enforcement in the town. In her opinion, Elder was aggressive in his efforts toward drug enforcement. Editor testified he wrote the headline for the "What's Your Beef" column about Elder, but denied he intended to suggest an answer to the question. Editor further testified he had personal information that led him to believe Elder knew certain people were selling drugs in Blacksburg. In 1991, Elder had advised Editor that a newspaper employee was "hanging out" with a known drug dealer who the police were in the process of trying to bust. Because Elder had tipped him off about his employee, Editor wondered if Elder could have tipped anyone else off. Editor testified he sometimes personally wondered if drug dealers were paying Elder. However, Editor admitted he did not have sufficient information to develop a news story to report that Elder was being bribed.

On direct examination, Editor admitted he was arrested in 1991 for manufacturing marijuana. He pled guilty and served his sentence. He denied that incident had anything to do with his decision to publish the "What's Your Beef" column. He stated he published the material in the column because he believes every citizen has the right to question and comment on the conduct and performance of public officials. On cross-examination, Editor admitted he did not contact any of his reporters to see if they knew anything about Elder before he decided to print the column.

DISCUSSION

I.

On appeal, Publisher first argues the trial judge erred in denying its motions for directed verdict and J.N.O.V. because (1) there was insufficient evidence that a false and defamatory statement of fact was published about Elder and (2) there was no clear and convincing evidence that the publication was made with constitutional actual malice. We disagree.

A libel action by a public official against a newspaper publisher implicates the constitutional guarantees of freedom of speech and press. In such actions, "the traditional burdens of proof are altered by the constitutional protections afforded the press." Beckham v. The Sun News, 289 S.C. 28, 30, 344 S.E.2d 603, 604 (1986). Public officials must establish that the defamatory statement was false and that the defamatory statement was made with constitutional actual malice, ie., with knowledge of its falsity or reckless disregard for its truth or falsity. Peeler v. Spartan Radiocasting Inc., 324 S.C. 261, 265, 478 S.E.2d 282, 284 (1996); Beckham, 289 S.C. at 30,344 S.E.2d at 604. The statement's falsity must be proved by a preponderance of the evidence. See F. Patrick Hubbard & Robert L. Felix, The South Carolina Law of Torts 494 n. 191 and accompanying text (2d ed.1997). Proof of constitutional actual malice must be clear and convincing. Miller v. City of West Columbia, 322 S.C. 224, 228, 471 S.E.2d 683, 685 (1996) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

We must review the record de novo to determine if there is clear and convincing evidence of constitutional actual malice. Peeler, 324 S.C. at 265, 478 S.E.2d at 284. However, we need not conduct an independent de novo review on the issue of falsity. Id.; Hubbard & Felix, supra, at 498. Further, in reviewing the denial of directed verdict and J.N.O.V. motions, we accept the evidence in the light most favorable to the non-moving party, including the reasonable inferences deducible therefrom. Strange v. South Carolina Dep't of Highways & Public Transp., 314 S.C. 427, 429-30, 445 S.E.2d 439, 440 (1994); Stevens v. Sun Publ'g Co., 270 S.C. 65, 70, 240 S.E.2d 812, 814-15 (1978).

First, the statement must be defamatory. Publisher argues the headline, "Are the drug dealers paying?," is a pure question which cannot fairly or reasonably be construed as making an accusation of bribery. It also asserts there is no reasonable basis to conclude wrongdoing by Publisher from the anonymous caller's statement, "Now I often wonder if the drug dealers are paying the Chief of Blacksburg."¹ We disagree. A defamatory statement tends to impeach the plaintiffs reputation. White v. Wilkerson, 328 S.C. 179, 183, 493 S.E.2d 345, 347 (1997). Defamation need not be direct because a mere insinuation that is false and malicious is actionable if its meaning is plain. Eubanks v. Smith, 292 S.C. 57, 63, 354 S.E.2d 898, 901 (1987); Richardson v. State-Record Co., 330 S.C. 562, 565, 499 S.E.2d 822, 824 (Ct.App.1998). Further, "defamatory meaning may be conveyed by means of a question. However, to be defamatory, a question must be reasonably read as an assertion of a false fact; inquiry itself, however embarrassing or unpleasant to its subject, is not accusation." 50 Am.Jur.2d Libel and Slander § 156 (1995) (citations omitted); see Williamson v. Askin & Marine Co., 138 S.C. 47, 53, 136 S.E. 21, 23 (1926) ("`[T]o render words defamatory and actionable, ... they [may] make a defamatory charge ... indirectly, ... by expression of belief or opinion, by insinuation, [or] by mere questions[;] ... and it is not less actionable because made indirectly.'" (quoting 36 C.J. Libel and Slander § 20, at 1153-54 (1924) (citations omitted))).

The South Carolina Supreme Court addressed an allegedly defamatory question in Drakeford v. Dixie Home Stores, 233 S.C. 519, 105 S.E.2d 711 (1958). In Drakeford, a woman had entered a store with a small jar of coffee. She bought several items and was stopped by a store manager who saw the coffee in her open handbag. The manager asked her, "Have you paid for that coffee you have got in your bag?" The customer sued for slander, but the court sustained a demurrer, finding that the question did not affirmatively or impliedly charge her with larceny. Id. at 526, 105 S.E.2d at 715.

We find Drakeford distinguishable because the statements in this case go beyond a mere inquiry and may reasonably be construed to imply Elder is guilty of bribery. The headline question implies an affirmative answer when read in conjunction with the text of the column. Therefore, we hold there is sufficient evidence of a factual assertion by insinuation that Elder was involved in bribery.

Second, the statement must be false. We find Elder carried his burden of proving the defamatory statement's falsity. Elder presented substantial direct evidence to demonstrate the falsity of the statement. Thus, the record amply supports the finding implicit in the jury's verdict that the defamatory statement was false.

Finally, the statement must have been made with constitutional actual malice. Publisher argues Elder did not establish constitutional actual malice because there was no evidence Editor had any subjective knowledge of the falsity or had serious doubts about the truth of the information. Editor testified he did not intend to...