Horne v. WTVR, LLC

• Decision Date: 18 June 2018
• Docket Number: No. 17-1613,No. 17-1483,17-1483
• Parties: Angela Engle HORNE, Plaintiff–Appellant, v. WTVR, LLC, d/b/a CBS6, Defendant–Appellee. Angela Engle Horne, Plaintiff–Appellee, v. WTVR, LLC, d/b/a CBS6, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

893 F.3d 201

Angela Engle HORNE, Plaintiff–Appellant,

v.WTVR, LLC, d/b/a CBS6, Defendant–Appellee.

Angela Engle Horne, Plaintiff–Appellee,

v.WTVR, LLC, d/b/a CBS6, Defendant–Appellant.

No. 17-1483

No. 17-1613

United States Court of Appeals, Fourth Circuit.

Argued: March 21, 2018

Decided: June 18, 2018

ARGUED: Richard F. Hawkins, III, THE HAWKINS LAW FIRM, PC, Richmond, Virginia, for Appellant/Cross–Appellee. Conrad M. Shumadine, WILLCOX & SAVAGE, PC, Norfolk, Virginia, for Appellee/Cross–Appellant. ON BRIEF: Brett A. Spain, WILLCOX & SAVAGE, PC, Norfolk, Virginia, for Appellee/Cross–Appellant.

Before KEENAN, WYNN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Keenan and Judge Wynn joined.

FLOYD, Circuit Judge:

On February 13, 2015, WTVR, LLC ("WTVR") aired a news story about a county school system hiring a felon in violation of a Virginia state law. The news story implied that the felon lied about a prior criminal conviction on a job application, thereby committing a Class 1 misdemeanor. However, Angela Engle Horne, the unidentified felon in question, had disclosed her prior felony on her job application for the Director of Budget & Finance for the county school system, and Dr. Bobby Browder, the then-superintendent, knew of her felony conviction when he hired her.

After the news story aired, Horne filed a defamation claim against WTVR. The district court granted WTVR’s motion to have Horne considered a public official rather than a private citizen for this claim. It is well settled that a public official cannot "recover[ ] 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." New York Times Co. v. Sullivan , 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The district court granted WTVR’s motion for a directed verdict, concluding that Horne failed to demonstrate that WTVR acted with actual malice in airing the allegedly defamatory news story. Horne now appeals, arguing that the district court erred in deeming her a public official, in granting WTVR’s motion for a directed verdict, and also in denying her pre-trial motion to compel WTVR to disclose the identity of its confidential source. WTVR cross-appeals, arguing that the district court erred in denying its motion for summary judgment because the news story was not reasonably capable of defaming Horne and is protected by the fair report privilege as a report of an official action. For the reasons that follow, we now affirm the district court’s decision and dismiss WTVR’s cross-appeal.

I.

On July 19, 2014, Horne applied to be the Director of Budget & Finance for the Prince George County School Board by filling out an online application. Where the application asked whether she previously had been convicted of a felony, she answered "Yes" and, as requested on the application, provided a short paragraph explaining her prior conviction for conspiracy to possess with the intent to distribute methamphetamine. The application did not ask Horne to certify that she had never been convicted of a felony and did not indicate that felons were ineligible for employment.

Browder conducted a series of interviews with Horne, during which Horne specifically asked him several times about the impact of her felony conviction. Browder represented that her previous felony conviction was not a hindrance to being hired. Horne was then hired for the position and began on September 29, 2014. On February 10, 2015, however, Horne was terminated because her prior felony conviction was a disqualifying factor under Virginia law. Va. Code § 22.1–296.1(A). Virginia law prohibits a school system from hiring a convicted felon for any position, requires an applicant to certify that he or she has not been convicted of a felony, and makes a false statement about an offense a Class 1 misdemeanor. Id.¹

On February 11 or 12, 2015, Wayne Covil, a senior reporter at WTVR, received a five-minute phone call from a familiar, confidential source who relayed that a felon had been hired and then fired from the school board office in Prince George County, and also may have provided a partial name of the felon. Covil then interviewed Browder, whom Covil had worked with for years on dozens of stories for WTVR. Browder told Covil that due to school system policy he could not discuss personnel matters, including that he could not confirm or deny that a felon was hired or fired.

The conversation then shifted to the hiring process. Browder conveyed that applicants are hired, then a background check is completed that can take up to eight weeks, and that prior convictions are sometimes discovered after the employee has begun working. Together, they reviewed Browder’s copy of the Virginia School Law Deskbook—a book of school system policies and rules that includes a copy of the Virginia Code. Pointing to the relevant statute in the Deskbook, Browder stated that it was a Class 1 misdemeanor to provide false information on a school application. Id. Covil testified that he believed Browder implied that the felon at issue had lied on her job application by failing to disclose her prior felony.

Shortly after the interview, Covil received an email from an anonymous source. The email said:

I am a Prince George county resident. On Monday, I anonymously sent letters to each of the school board members informing them that a convicted felon was hired by the school board office. I know this because this person also lives in Prince George and I know they are a felon. I also know they work as a Director at the Prince George School Board Office. My concern is, how did this happen? Any state employee must have a background check when hired so how was this overlooked? Who allowed this to happen? Shouldn’t someone take responsibility? Who at the School Board gave the OK to hire a felon. Virginia law states that a school division can not [sic] hire a convicted felon. This also happens at the same time the Superintendent gets a $10,000.00 raise. Is he really doing his job.

J.A. 910–11. WTVR’s News Director, Sheryl Barnhouse, emailed Covil and told him "[w]e need to pursue" the story and to find out the name of the felon. J.A. 910. Covil and Michael Bergazzi, an Executive Producer at WTVR, then tried unsuccessfully to confirm the felon’s identity by searching the internet. After finding a woman Bergazzi incorrectly thought may be the felon, Bergazzi told Covil to "ask your source if [the felon] may have been convicted of a crime in Tennessee." J.A. 908. Covil did not follow up with his source. At some point after this, believing that Horne may be the felon based on the informant’s initial tip, Covil tried to call Horne, but was unable to reach her. Covil did not investigate further.

On February 13, 2015, in its lead story for the 5:30 PM newscast, WTVR ran Covil’s news story. It was titled, "Source: Convicted felon worked at school board office in Central Va.," and a banner across the bottom of the screen for the duration of the broadcast read, "Felon Hired, Then Fired." J.A. 928. A print version of the story was also posted online. The story described that a felon had been hired to work in the school board office, and was no longer employed. Then, Covil held a copy of the Virginia School Law Deskbook that includes the law regarding the school system’s hiring policy, and shifted to a segment of the recorded interview with Browder explaining that the background check occurs after the applicant is given a job offer, and that the background check can reveal disqualifying information, including a felony conviction. The screen then displayed a copy of the online application’s "yes" and "no" questionnaire for applicants to identify whether they have been convicted of various crimes. The news story ended by stating that it is a Class 1 misdemeanor to misrepresent one’s criminal past in a school application while displaying the text of the relevant Virginia Code provision. See Va. Code § 22.1–296.1(A). The news story did not identify Horne by name or position, nor did it provide details of her prior conviction.

Two months later, Horne filed suit against the school system and Browder. On February 16, 2016, Horne filed this action against WTVR in federal court under diversity jurisdiction pursuant to 28 U.S.C. § 1332, alleging that the news story defamed her. Horne filed a pre-trial motion to compel WTVR to disclose the confidential source that provided the initial tip for the story, which the court denied. WTVR moved to have Horne deemed a "public official" and a "limited purpose public figure" for purposes of the defamation claim. The court deemed Horne a "public official," but declined to make any finding as to whether she was a "limited purpose public figure." WTVR moved for summary judgment on several grounds, including that the news story was not reasonably capable of defaming Horne and that the story was also protected by the fair report privilege as a publication of an official statement from the school spokesperson. The court denied the motion for summary judgment. The case proceeded to trial, and at the close of evidence, WTVR moved for a directed verdict. The court granted the motion, concluding that Horne provided insufficient evidence that WTVR made the defamatory statements with "actual malice," as is required for defamation claims against public officials.

Horne now appeals, arguing that the district court erred in deeming her a public official, in granting WTVR’s motion for a directed verdict, and also in denying her pre-trial motion to compel WTVR to disclose the identity of its confidential source. WTVR cross-appeals, arguing that the district court erred in denying its motion for summary judgment because the news story was not reasonably capable of defaming Horne and is protected by the fair...