Kidder v. Anderson

• Decision Date: 30 January 1978
• Docket Number: No. 59988,59988
• Citation: 354 So.2d 1306
• Parties: 3 Media L. Rep. 1881 Howard A. KIDDER, Plaintiff-Appellee-Respondent, v. Bob ANDERSON and Capital City Press, Inc., Defendants-Appellants-Relators.
• Court: Louisiana Supreme Court

Page 1306

354 So.2d 1306

3 Media L. Rep. 1881

Howard A. KIDDER, Plaintiff-Appellee-Respondent, v. Bob ANDERSON and Capital City Press, Inc. Defendants-Appellants-Relators.

No. 59988.

Supreme Court of Louisiana.

Jan. 30, 1978.

Rehearing Denied March 2, 1978.

John G. Weinmann, Harvey D. Wagar, III, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for amici curiae.

Robert L. Kleinpeter, Kleinpeter & Nevils, Baton Rouge, for plaintiff-respondent.

F. W. Middleton, Jr., F. M. Coates, Jr., W. A. Abercrombie, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-applicants.

TATE, Justice.

The plaintiff Kidder sues a newspaper reporter (Anderson), and his employer-publisher to recover damages resulting from the publication of several newspaper articles and editorials. Kidder was Acting Chief of Police of Baton Rouge. He alleges damages caused him by defamatory articles depicting him, a law enforcement officer, as accepting payoffs and favors from barroom proprietors and gamblers, as interested in the operation of a house of prostitution in the 1950's, and as using the influence of his office for personal gain.

The trial jury awarded Kidder damages of $400,000. Reducing the award to $100,000, the court of appeal affirmed judgment in favor of Kidder. 345 So.2d 922 (La.App. 1st Cir. 1977).

On application of the defendants, we granted certiorari, 346 So.2d 1271 (1977), because we entertained doubt that the intermediate court had correctly applied the constitutional rule regulating recovery of damages by a public official claiming he had been defamed by criticism:

A public official may not recover damages for a defamatory statement, even if false, 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 Company v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). Moreover, the public official plaintiff must meet this burden not merely by a preponderance of the evidence, but with "clear and convincing proof." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). See also New York Times Company v. Sullivan, cited above, 376 U.S. 285-86, 84 S.Ct. 729.

(1)

As stated in New York Times Company v. Sullivan, cited above, 376 U.S. 279, 84 S.Ct. 725, the reason for the rule is that otherwise "would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which 'steer far wider of the unlawful zone.' "

That opinion also noted, 376 U.S. 269, 84 S.Ct. 720, that the constitutional safeguard for freedom of expression " 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people' " and that " 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.' "

As we ourselves recently reiterated in Mashburn v. Collin, --- So.2d ---- (La.1977): " 'The stake here, if harassment succeeds, is free debate. One of the purposes of the Times principle, in addition to protecting persons from being cast in damages in libel suits filed by public officials, is to prevent persons from being discouraged in the full and free exercise of their First Amendment rights with respect to the conduct of their government. . . . Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors.' "

(2)

In upholding an award, the court of appeal, with one judge dissenting, concluded: (a) that, reviewing the evidence (after trial on the merits), it was unable to find error in the apparent jury determination that the charges were false in fact; ¹ and (b) that, since the information had been gathered from disgruntled police officers and persons whom the jury apparently found to be unreliable, the jury could reject good faith in publication and could find the malice test met, because "recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of the reports." St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968).

(3)

The error in the intermediate majority's reasoning is that the credibility of the publisher's informants must be judged, not on the basis of an evaluation of sworn testimony at a trial (after full opportunity to rebut accusations), but rather on the basis of information available to the reporter at the time of publication. St. Amant v. Thompson, cited above.

That police officers were disgruntled and antagonistic to their proposed chief is not necessarily an indication of their unreliability as informants. In fact, some of these very police officers now attacked as unreliable have often appeared as witnesses in criminal prosecutions by the state, with their credibility vouched for by officers of the state.

In St. Amant v. Thompson, cited above, the United States Supreme Court reversed this court's affirmance of a judgment for damages in a public official's defamation action. As in that case, the bias of the informant is not persuasive in determining malice, where the information has been obtained from an informant in a position to know the information published and where there is no clear and convincing evidence that the person publishing the information had any personal knowledge unequivocally indicating the unreliability of his informant.

With regard to the reliability of the information conveyed by these police officers, the criterion is not whether they were motivated by selfish reasons to furnish the derogatory information. Rather, it is whether or not they were in a position to obtain the information furnished by them, and whether or not the report they conveyed was so inherently improbable as to create indisputable doubt as to its authenticity. St. Amant v. Thompson, cited above.

Again, having attacked the police officer information as suspect on the ground of bias, the plaintiff also suggests that the newspaper reporter improperly relied upon information conveyed to him (and corroborated by written statements obtained from them) from gamblers and barmaids as to payoffs or bribes.

We are unable to accept the inference that, therefore, the reporter should not have relied upon information as to bribery conveyed by them. Just as the state is rarely in a position to rely upon the testimony of church wardens and Sunday-school teachers to prove criminally corrupt activities by public officials, so newspaper investigation of reports of corruption must often obtain first-hand corroboration from those present in the barrooms or gambling houses, rather than from citizens who spend their time only at home, in church, or at work in less colorful occupations.

On the merits, substantial evidence, of police officers and others, indicates factual circumstances which might give rise to an inference of impropriety on the part of Kidder during his long police career, despite the recognition of his merit by his steady advance to the highest ranks of the police force. Nevertheless, we find no reason to reject the jury's apparent finding that, despite these indications of impropriety (indications perhaps unavoidably arising from police association, in order to obtain information of law-violation, with persons on the fringes of crime), Chief Kidder was a reliable police officer throughout his career, with plausible explanations and denials for the various incidents of alleged impropriety involved.

(4)

The issue, however, is not the ultimate falsehood of the defamatory statements. It is, rather, whether a newspaper reporter and publisher uttered them with actual malice, i. e., with reckless disregard of whether they were false or not.

In each instance, the published statements were based upon interviews, generally corroborated by written statements taken at the time, with individuals in an apparent position to know of the factual accuracy of the information conveyed.

The record...