Gazette, Inc. v. Harris

• Decision Date: 01 February 1985
• Docket Number: 830651 and 831446,830526,Nos. 830758,s. 830758
• Citation: 325 S.E.2d 713,229 Va. 1
• Parties: , 54 A.L.R.4th 685, 23 Ed. Law Rep. 332, 11 Media L. Rep. 1609 The GAZETTE, INC. v. James William HARRIS, et al. CHARLOTTESVILLE NEWSPAPERS, INC. v. Debra C. MATTHEWS. PORT PACKET CORPORATION v. E. Grey LEWIS, et al. James N. FLEMING v. W. Bedford MOORE, III. Record
• Court: Virginia Supreme Court

Page 713

325 S.E.2d 713

229 Va. 1, 54 A.L.R.4th 685, 23 Ed. Law Rep. 332,

11 Media L. Rep. 1609

The GAZETTE, INC. v. James William HARRIS, et al.

CHARLOTTESVILLE NEWSPAPERS, INC. v. Debra C. MATTHEWS.

PORT PACKET CORPORATION v. E. Grey LEWIS, et al.

James N. FLEMING v. W. Bedford MOORE, III.

Record Nos. 830758, 830526, 830651 and 831446.

Supreme Court of Virginia.

Feb. 1, 1985.

Lewis T. Booker, Richmond (Hunton & Williams, Richmond, on briefs), for appellant The Gazette, Inc.

S. Keith Barker, Richmond (Tuck, Freasier & Herbig, Richmond, on brief), for appellees James William Harris, et al.

Thomas E. Albro, Charlottesville (Barrett E. Pope, Smith, Taggart, Gibson & Albro, Charlottesville, on brief), for appellant Charlottesville Newspapers, Inc.

Matthew B. Murray, Charlottesville, for appellee Debra C. Matthews.

Harvey B. Cohen, Arlington (Joanne F. Alper, William L. Jacobson, Cohen, Gettings Alper & Dunham, Arlington, on briefs), for appellant Port Packet Corp.

William B. Cummings, Alexandria, for appellees E. Grey Lewis, et al.

Virginia Press Association, Inc., Alexander Wellford, David C. Kohler, Christian, Barton, Epps, Brent & Chappell, Richmond, on brief, amicus curiae, for appellant.

D. Alan Rudlin, Richmond (W. Jeffery Edwards, Richmond, Gerald G. Poindexter, Surry, Hunton & Williams, Richmond, Poindexter & Poindexter, Surry, on briefs), for appellant James N. Fleming.

Thomas E. Albro, Charlottesville (Bradley B. Cavedo, Smith, Taggart, Gibson & Albro, Charlottesville, on brief), for appellee W. Bedford Moore, III.

Present: CARRICO, C.J., COCHRAN, POFF, COMPTON and STEPHENSON, JJ., and HARMAN ^* Senior Justice, and HARRISON ^** and GORDON, Retired Justices.

COMPTON, Justice.

In one opinion, we decide four libel appeals. The plaintiffs are private individuals, not public officials or public figures. Three of the appeals are based on suits against members of the print media. In the fourth appeal, the defendant is a private person. Judgments for compensatory damages have been entered against the defendant in each case. In two cases, the judgments include awards of punitive damages.

The dominant issue to be decided in each case is what standard of liability should govern an award of compensatory damages in a libel action in Virginia, given the developments in federal constitutional law on the subject of libel beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Adjudication of this central question will spawn subsidiary issues common to all the suits. In addition, the awards of punitive damages generate issues common to those two cases. The common questions of law will be analyzed in the first sections of this opinion and, in succeeding sections, the issues peculiar to a specific case will be adjudicated in the section of the opinion devoted to such case.

I. The Dominant Issue

A. Virginia Background

In Virginia, as in other states, the law of defamation historically has protected a basic interest. The individual's right to personal security includes his uninterrupted entitlement to enjoyment of his reputation. Fuller v. Edwards, 180 Va. 191, 197, 22 S.E.2d 26, 29 (1942). "Society has a pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966).

Under the general framework of defamation law in Virginia prior to 1964, the beginning of a period when major aspects of libel law became federalized, the defamed private citizen had to prove only a false publication that included words which were either actionable per se according to certain fixed principles, or, if not defamatory per se, words which resulted in special damages to the party defamed. See M. Rosenberg & Sons v. Craft, 182 Va. 512, 518, 29 S.E.2d 375, 378 (1944). Upon such publication, ¹ malice was inferred and damage to reputation was presumed. See Note, Defamation in Virginia--A Merger of Libel and Slander, 47 Va.L.Rev. 1116, 1117 (1961). And, unless the otherwise libelous statement was privileged or the defendant could establish its truth, Rosenberg v. Mason, 157 Va. 215, 228, 160 S.E. 190, 195 (1931), the publisher was liable for compensatory damages. Upon proof of common-law actual or express malice, the plaintiff was entitled to an award of punitive damages. James v. Haymes, 160 Va. 253, 263, 168 S.E. 333, 337 (1933).

Commencing in 1964, however, a series of decisions of the United States Supreme Court caused significant changes in the law of libel.

B. Pertinent Supreme Court Decisions

In New York Times Co. v. Sullivan, the Supreme Court determined for the first time the extent to which the constitutional protections of speech and press limit a state's power to award damages in a libel action brought by a public official against critics of his official conduct. 376 U.S. at 256, 84 S.Ct. at 713. The Court decided that the rules of law applied by the Alabama state courts were constitutionally deficient for failure to provide safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by such a public official. Id. at 264, 84 S.Ct. at 717. The Court held that "[t]he constitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless 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 279-80, 84 S.Ct. at 725-26. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the Court applied the New York Times "actual malice" standard to state criminal libel statutes that imposed sanctions for criticism of official conduct of public officials.

In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1966), the Court held "that a 'public figure' who is not a public official may ... recover [compensatory and punitive] damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." Id. at 155, 87 S.Ct. at 1991. In holding that the standard had been met by the plaintiff in Butts, but not in the companion case of Associated Press v. Walker (decided in the same opinion), the Court rejected the defendant's contention that it could not be subjected to an assessment of punitive damages. Justice Harlan, writing for the majority, stated: "Where a publisher's departure from standards of press responsibility is severe enough to strip from him the constitutional protection our decision acknowledges, we think it entirely proper for the State to act not only for the protection of the individual injured but to safeguard all those similarly situated against like abuse." Id. at 161, 87 S.Ct. at 1994.

In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Court identified evidence that may be employed to establish New York Times "actual malice." The majority, through Justice White, noted that "evidence of either deliberate falsification or reckless publication 'despite the publisher's awareness of probable falsity' was essential to recovery by public officials in defamation actions." Id. at 731, 88 S.Ct. at 1325. The Court then listed certain acts which show the "recklessness" aspect of "actual malice": intentional fabrication by a defendant of facts or communications; basing an article wholly upon an unverified anonymous telephone call; printing allegations so inherently improbable that only a reckless person would put them in circulation; and publication of an article despite obvious reasons to doubt the truth and veracity of the informant upon whom the article relies for accuracy. Id. at 732, 88 S.Ct. at 1326. The Court said that failure to investigate will not in itself establish bad faith, id. at 733, 88 S.Ct. at 1326, but stated that a "defendant in a defamation action brought by a public official cannot ... automatically insure a favorable verdict by testifying that he published with a belief that the statements were true." Id. at 732, 88 S.Ct. at 1326.

In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), a plurality of the Court, through Justice Brennan, extended the New York Times "actual malice" standard to publications relating to all matters of public or general concern, irrespective of the public or private nature of the plaintiff. In rejecting the suggested distinction between public officials and public figures on the one hand and private individuals on the other, Justice Brennan focused instead on society's interest in learning about issues of public or general concern. Thus, under Rosenbloom, once a trial court determined that the alleged libel involved a matter of public or general concern, the fact finder should then consider whether New York Times malice had been proved, paying no heed to the plaintiff's status.

Three years later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court expressly repudiated its holding in Rosenbloom. One commentator states that the Gertz majority sensed "the Rosenbloom plurality opinion had nearly destroyed the common law of defamation...." J. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1409 (1975).

In Gertz, a Chicago policeman had shot and killed a youth. Gertz, a reputable attorney, was employed to represent the youth's family in civil litigation against the officer. The defendant published, in its monthly magazine giving the views of the John Birch Society, false statements about Gertz. The publication...