Hardin v. Santa Fe Reporter, Inc.

Decision Date11 October 1984
Docket NumberNo. 83-1237,83-1237
Citation745 F.2d 1323
Parties11 Media L. Rep. 1026 Herbert O. HARDIN, Plaintiff-Appellant, v. The SANTA FE REPORTER, INC., a New Mexico corporation, and Roger Morris, Defendants-Appellees.
CourtU.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. *

SETH, Chief 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:

"Plaintiff Hardin has had a long and distinguished career of public service. His career with the State Department ran from 1957 to 1975. From 1957 until 1963 he served in Washington, D.C., as the Chief of the Office of Public Safety for the Latin America Region....

"Throughout his State Department career, Hardin was a thorough and effective professional. His colleagues regarded him as a serious, dedicated and reliable man who understood his responsibilities and faithfully executed the duties of his office. His integrity was beyond question. In short, he was an outstanding public servant.

....

"There is no credible evidence before the Court supporting the allegations of widespread or systematic torture by agents of the governments Hardin advised while working with OPS. Hardin has established as fact that he did not participate in, did not condone, and was not aware of any such practices by the governments of Colombia and Guatemala. Indeed, on one occasion when Hardin heard of allegations of torture by the judicial police in Guatemala, Hardin ordered that OPS assistance to that agency be terminated. It is clear that the allegations and suggestions of Hardin's knowledge of alleged widespread torture were patently false.

"As discussed above, Morris wrote the body of the article. At the time the article was written, Morris was an agent and employee of Santa Fe Reporter, Inc. The headlines, photographs and the bold-face text on the front page were selected and written by Richard McCord, editor of the Santa Fe Reporter. McCord performed only minimal editing of the article. These actions of the editor ratified and endorsed all of Morris' actions on behalf of Santa Fe Reporter, Inc. In the April 17 article, Morris, for reasons known only by him, sought to purvey his personal view of the activities of OPS, and this view was ratified and adopted by Santa Fe Reporter, Inc."

Of the statements of the person relied upon and referred to in the article as "a former U.S. diplomat," the court found:

"Marquez' statements were clearly not based on fact. They were misguided and made for the purpose of self-aggrandizement. Marquez had never met anyone from OPS. Marquez did not have 'close liaison' with the American Embassy in Bogota as reported in the article. Marquez had never seen or reviewed intelligence reports as reported in the article. Marquez was hardly an American diplomat, as reported in the article, but was merely a low-level employee of the United States government.

"Given the extremely serious nature of Marquez' allegations, it is clear that the defendants were negligent in failing to investigate Marquez' background.... If the plaintiff were merely required to prove negligence, the Court would have little difficulty finding in his favor.

"However, the evidence is clear that Hardin was a public official for purposes of the First Amendment."

Since appellant Hardin was a public official, to prevail in this action the Supreme Court has held, as...

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