Hardin v. Santa Fe Reporter, Inc.
Decision Date | 11 October 1984 |
Docket Number | No. 83-1237,83-1237 |
Citation | 745 F.2d 1323 |
Parties | 11 Media L. Rep. 1026 Herbert O. HARDIN, Plaintiff-Appellant, v. The SANTA FE REPORTER, INC., a New Mexico corporation, and Roger Morris, Defendants-Appellees. |
Court | U.S. Court of Appeals — Tenth Circuit |
Thomas L. Grisham of McCulloch, Grisham & Lawless, P.A., Albuquerque, N.M., (Stephen F. Lawless, Albuquerque, N.M., on the brief), for plaintiff-appellant.
Saul Cohen of Sutin, Thayer & Browne, P.C., Santa Fe, N.M., (Randy Bartell, Santa Fe, N.M., with him on the brief), for defendants-appellees.
Before SETH and McWILLIAMS, Circuit Judges, and CAMPOS, District Judge. *
This is an appeal from the dismissal of Herbert O. Hardin's complaint for libel against Roger Morris and The Santa Fe Reporter following a trial on the merits. The complaint was based on an article written April 17, 1980 in which Charles Marquez was interviewed. Mr. Marquez' remarks and other parts of the article stated that during Herbert Hardin's employment in Colombia and Guatemala as Chief Public Safety Advisor at the American Embassies he had been aware of or participated in police torture in those countries. The article suggested that by providing assistance from the State Department's Office of Public Safety (OPS) appellant was condoning the alleged brutality.
The district court found that, under Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597, Mr. Hardin was a public official for purposes of the First Amendment because of his position as chief aide to the Secretary of Corrections. Thus, under New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, appellant was obliged to prove that the defendants acted with actual malice, i.e., knowledge of falsity or reckless disregard for the truth.
The court found that Mr. Marquez' statements clearly were not based on fact and that Mr. Morris was negligent in failing to investigate Marquez' background. However, because investigatory failures are insufficient to satisfy the malice requirement, New York Times, at 287, 84 S.Ct. at 729, Curtis Publishing Co. v. Butts, 388 U.S. 130, at 153, 87 S.Ct. 1975, at 1990, 18 L.Ed.2d 1094, the court concluded that defendants' actions, while coming perilously close, did not rise to the level of reckless disregard for the truth.
It appears necessary to quote some of the findings of fact made by the trial court to provide a description of the circumstances, and to show how close the action of the reporter and the paper was to the reckless disregard of the truth. The trial court thus in part found:
....
Of the statements of the person relied upon and referred to in the article as "a former U.S. diplomat," the court found:
Since appellant Hardin was a public official, to prevail in this action the Supreme Court has held, as...
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