Kassel v. Gannett Co., Inc., 88-1766

Decision Date09 February 1989
Docket NumberNo. 88-1766,88-1766
Citation875 F.2d 935
Parties28 Fed. R. Evid. Serv. 488, 16 Media L. Rep. 1814 Jeffrey KASSEL, Plaintiff, Appellee, v. GANNETT CO., INC., d/b/a "USA Today," Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

John B. McCrory with whom Richard D. Rochford, Jr., Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., William L. Chapman and Orr & Reno, P.A., Concord, N.H., were on brief, for defendant, appellant.

Robert M. Larsen with whom Sulloway Hollis & Soden, Concord, N.H., Barry M. Scotch and Scotch & Zalinsky, Manchester, N.H., were on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Gannett Co. (Gannett) takes umbrage at a jury verdict returned against it following a libel trial in the United States District Court for the District of New Hampshire. The case was brought under diversity jurisdiction, 28 U.S.C. Sec. 1332, and implicates New Hampshire law. After reviewing the evidence and the inferences to be drawn therefrom in the light most favorable to the verdict-winner, Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987), and subjecting rulings with constitutional implications to de novo scrutiny to safeguard First Amendment concerns, Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984), we affirm the finding of liability, but vacate the award of damages and remand for a limited new trial.


Dr. Jeffrey Kassel worked as a clinical psychologist at the Veterans' Administration (VA) hospital in Manchester, New Hampshire from 1977 until 1985. Kassel counseled veterans and their families, treated emergency cases, performed psychological evaluations, and led group therapy sessions. Many of his patients had served in the Vietnam War.

Enter USA Today (USA), a daily national newspaper published by Gannett. In April 1985, USA began planning a special feature commemorating the tenth anniversary of the fall of Saigon. At the time, Ron Wyman was USA's principal New Hampshire correspondent. Wyman was a moonlighter; his regular job was as a news editor for a Manchester television station. Noreen Kopenhaver, a USA executive, telephoned Wyman around April 14 and assigned him to gather material for the Vietnam issue. On Sunday, April 21--the deadline date--Wyman telephoned Kassel, a social acquaintance, and asked if he would mind talking about Vietnam. The psychologist was hosting a cookout, but nevertheless invited Wyman to visit.

Wyman conducted the interview in Kassel's yard, with the barbecue in full swing. More than chopped sirloin was grilled that day. The conversation between the correspondent and the psychologist lasted fifteen to twenty minutes. The gist of Kassel's remarks, Wyman recalled, was that American soldiers in Vietnam were victims, forced to fight in a war they did not want. In addition, Kassel--who ten days earlier had read a Wall Street Journal article which stated that Vietnamese veterans were "somewhat amused by the idea that their painful experiences might leave them with 'post-traumatic stress disorder,' the scourge of many U.S. veterans"--recalled telling the reporter that he might find a story angle in the attitudes of veterans from the other side.

Wyman read his notes to Kopenhaver over the telephone that evening. Five days later, USA published its Vietnam retrospective. On a page with paragraph-long remarks from each state, beneath the rubric "VIETNAM--A USA PERSPECTIVE--ACROSS THE USA," the following text appeared under the subheading "NEW HAMPSHIRE":

"We've become a nation of hand wringers," says VA psychologist Jeff Kassel, 41, of Manchester. "It's amusing that vets feel they are the victims when the Vietnamese had the napalm and ... bombs dropped on them." Kassel, who had a student deferment, says winning or losing "depends on whether it's the vet who lost his legs or the chairman of ... Bell Helicopters."

Upon seeing the piece, Kassel complained to Wyman that USA inaccurately attributed to him the "it's amusing" sentence. He also rebuked the journalist because the source statement, as reported by the Wall Street Journal, had described Vietnamese attitudes, not American attitudes. 1 Kassel later made oral and written requests for retraction. Eventually, the newspaper sent a reporter to New Hampshire to investigate the story's accuracy. On June 10, USA printed a lengthy correction:

A quote by Veterans Administration psychologist Jeff Kassel, Manchester, N.H., which appeared in April 26 editions should be clarified. Kassel was commenting for a USA TODAY special report on the Vietnam War and a portion of the quote attributed to Kassel--"It's amusing that vets feel they are the victims when the Vietnamese had the napalm and ... bombs dropped on them"--was just part of a statement Kassel gave. In fact, he was quoting what he'd read in another news story, which said: "Vietnamese Vietnam veterans think it's amusing that American vets feel they are the victims when the Vietnamese had the napalm and ... bombs dropped on them."

Kassel, 39, who did not want to leave the wrong impression, said he has sympathy for American Vietnam veterans. "I have complete sympathy for anyone who spent time in Vietnam," he said. "I have spent my entire career trying to help people readjust to what happened to them in Vietnam. I consider most Vietnam veterans victims."

Meanwhile, the original (incorrect) report prompted a firestorm of hostile outcry, leading the VA to attempt Kassel's firing. According to the notice of proposed removal, the printed statements in USA "elicited adverse wide reaction from local, State, and national veterans' groups" and "destroyed [plaintiff's] credibility and usefulness ... in the treatment of psychological illnesses of our veteran patients...." Although the VA dropped severance proceedings after USA published its correction, the agency persisted in an effort to transfer Kassel involuntarily. In Kassel's view, the story as first printed wrecked his reputation among patients, veterans, and co-workers. He sued Gannett in August 1985, alleging that the incorrect attribution of the "it's amusing" quotation to him was libelous.

Following nearly three years of pretrial wrangling, and a 12-day trial, a jury awarded Kassel damages of $300,000.


It is well settled that, short of imposing liability without fault, states may define appropriate standards regarding defamation of private individuals. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789 (1974). New Hampshire allows "private person" recovery so long as negligence is proven. Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 480 A.2d 123, 126 (1984); McCusker v. Valley News, 121 N.H. 258, 428 A.2d 493, 494, cert. denied, 454 U.S. 1017, 102 S.Ct. 552, 70 L.Ed.2d 415 (1981). But, if the plaintiff is a "public figure," proof of negligence is not enough; the federal Constitution bars libel recoveries by public figures absent clear and convincing proof of "actual malice," i.e., knowledge of falsity or reckless disregard for truth. See Gertz, 418 U.S. at 342, 94 S.Ct. at 3008; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 285-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964).

There are various ways in which the New York Times standard can come into play. A defendant can assert, for example, that a particular complainant was either an all-purpose public figure or a limited-purpose public figure. See Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. Gannett eschews these categorizations on appeal, 2 postulating that Kassel was stripped of "private person" shielding because, as an employee of the VA, he was a "public official."

A. The "Public Official" Rule.

In a sense, every public employee is a "public official"--but in the idiom of libel law, the term has a much narrower sweep. Generally speaking, the classification embraces only those public employees with "substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966) (footnote omitted). The formulation, we suggest, is easier stated than applied. The Court "has not provided precise boundaries for the category of 'public official,' " Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8, 99 S.Ct. 2675, 2680 n. 8, 61 L.Ed.2d 411 (1979), nor has it determined "how far down into the lower ranks of government employees" the designation should extend. New York Times, 376 U.S. at 283 n. 23, 84 S.Ct. at 727; see generally Annot., 19 A.L.R.3d 1361 (1968). One recurring question, exemplified by this case, is whether the "public official" label--and its inevitable concomitant, the heightened level of proof demanded by New York Times--should apply to relatively obscure bureaucratic functionaries laboring in governmental vineyards far from the center stage of political drama.

The caselaw does not leave us entirely rudderless on these uncertain seas. The Court has emphasized that the "public official" concept "cannot be thought to include all public employees." Hutchinson, 443 U.S. at 119 n. 8, 99 S.Ct. at 2680 n. 8. Similarly, a need to prove actual malice does not arise "merely because a statement defamatory of some person in government employ catches the public's interest; that conclusion would virtually disregard society's interest in protecting reputation." Rosenblatt, 383 U.S. at 86 n. 13, 86 S.Ct. at 676 n. 13. Read together, the Court's defamation opinions reveal that the "public official" rule rests on a tripodal base. The trio of policy concerns which undergirds the caselaw can be instructive in attempting to assess the rule's range and reach.

B. The Three-Legged Stool.

The first leg of the stool is a frank recognition that the First Amendment requires maximum latitude for "uninhibited, robust, and...

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