Peeler v. Spartan Radiocasting, Inc.

• Decision Date: 16 April 1996
• Docket Number: No. 24531,24531
• Citation: 324 S.C. 261,478 S.E.2d 282
• Parties: 25 Media L. Rep. 1310 Harvey S. PEELER, Respondent, v. SPARTAN RADIOCASTING, INC., and Allan Ray Tedder, Appellants. . Heard
• Court: South Carolina Supreme Court

Page 282

478 S.E.2d 282

25 Media L. Rep. 1310

Harvey S. PEELER, Respondent, v. SPARTAN RADIOCASTING, INC., and Allan Ray Tedder, Appellants.

No. 24531.

Supreme Court of South Carolina.

Heard April 16, 1996.

Decided Nov. 18, 1996.

Rehearing Denied Jan. 31, 1997.

William U. Gunn and Perry D. Boulier, both of Holcombe, Bomar, Cothran, & Gunn, P.A., Spartanburg; Bruce W. Sanford, Henry S. Hoberman, and Stephanie S. Abrutyn, all of Baker & Hostetler, Washington, D.C., for appellants.

Robert G. McCulloch, Jr., and J. Edward Bell, III, both of Bell & Bagley, Sumter, for respondent.

Jay Bender, of Baker, Barwick, Ravenel & Bender, Columbia, for amicus curiae, South Carolina Press Association.

PER CURIAM:

This is an appeal of a defamation case. The jury awarded respondent Harvey S. Peeler $50,000.00 actual damages and $625,000.00 punitive damages. We reverse.

FACTS

On August 29 and September 1, 1988, appellants broadcast two television news stories on channel WSPA ¹ about forgeries of names on a petition to place J.R. Stroupe's name on the ballot for election to the South Carolina Senate. The incumbent, Peeler, brought this libel action alleging these news stories conveyed that Peeler had a role in the forgeries and the public believed he was guilty of forgery. ² The following is a transcript of the August 29th broadcast:

Ray Tedder: These SLED agents are pouring over petitions that have been filed by J.R. Stroupe, a former Cherokee County Councilman who wants to run for the State Senate. The State Election Commission says that twenty people have signed affidavits saying that they didn't sign the petitions; that someone forged their signatures. These agents are trying to find out if there are more. At Stroupe's Service Station near Thickety Mountain, supporters are claiming it's just dirty politics.

J.R. Stroupe: Everything was fine until I asked to see them.

Tedder: Stroupe says he has hundreds of people working for him trying to get enough signatures to get him on the ballot in November, opposite incumbent State Senator Harvey Peeler. He says he doesn't know who might have forged the signatures, but he claims Peeler or his supporters engineered this problem. Peeler says that's nonsense.

Harvey Peeler: The first I heard about it, Ray, was yesterday afternoon. It took me totally by surprise.

Tedder: For election officials, finding out who did it is not as important as finding out how many signatures are valid. They have to certify the petition by September the first. In Gaffney, Ray Tedder, TV-7, Eyewitness News.

The following is a transcript of the September 1st broadcast:

Tedder: According to South Carolina Election Officials, twenty people claim their names were forged on these petitions. That helped keep J.R. Stroupe twenty-seven away from having enough to get on the ballot opposite incumbent State Senator Harvey Peeler. These SLED agents sorting the petitions are continuing to investigate hoping to find out who committed the crime. J.R. Stroupe is conducting his own investigation. Stroupe wants to prove he had nothing to do with the forgeries, and the supporters who gathered at his service station believe someone in the Peeler camp set Stroupe up. Peeler says he had nothing to do with it. But Peeler will be hard pressed to convince a lot of people. They believe it's just Cherokee County politics as usual.

John Gimball: It wouldn't surprise me. I mean, there's so much things that go on that people won't say nothing about.

Arthur Hall: My opinion is that Harvey's got something to do with it.

Tedder: Stroupe says he's not decided whether to wage a write-in campaign, but his supporters say they will carry on one with or without his active participation. In Cherokee County, Ray Tedder, TV-7, Eyewitness News.

Peeler alleges Tedder misquoted Stroupe in the August 29th story by stating Stroupe had accused Peeler of forgery. In the second story, Peeler alleges Tedder misquoted Gimball and Hall.

The jury returned a verdict of $50,000 actual damages against both appellants and $625,000 punitive damages against Spartan. The trial judge denied appellants' motions for a new trial nisi, new trial absolute, and judgment notwithstanding the verdict (JNOV).

DISCUSSION

To recover damages for defamation, a public figure must prove by clear and convincing evidence that the statements were made with actual malice, that is, with knowledge that it was false or with reckless disregard as to its truth or falsity. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). ³

Appellants contend we are to conduct an independent de novo review of the entire record to determine if there is clear and convincing evidence to support findings of actual malice and falsity. ⁴ We agree our scope of review on the issue of actual malice is a de novo review to determine if there is clear and convincing evidence. However, we do not agree this is the proper scope of review on the issue of falsity.

In Bose, the United States Supreme Court held there must be an independent review by the appellate court to determine if the evidence in the record supports a finding of actual malice by clear and convincing evidence. In Harte-Hanks, supra, the Supreme Court declined to address whether this mandatory review of actual malice should also be applied to the issue of falsity. Cf. Locricchio v. Evening News Ass'n, 438 Mich. 84, 476 N.W.2d 112 (1991) (in private figure plaintiff case independent review of falsity is required as logical corollary of independent review of actual malice required in public figure case). Accordingly, we are required to conduct an independent de novo review of the record only on the issue of actual malice. ⁵

Actual malice is a subjective standard testing the publisher's good faith belief in the truth of his or her statements. The publisher must have entertained serious doubts as to the truth of his publication. St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). To establish recklessness, there must be an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). "Mere negligence does not suffice." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991).

As to the August 29th newscast, Peeler may have proven he did not commit the forgeries, but he failed to prove by clear and convincing evidence that Stroupe did not make the accusation. Peeler presented Haynes Mullinax who testified he was present when Tedder spoke with Stroupe for the interview and Stroupe accused Peeler's supporters but not Peeler. Peeler also offered as evidence of actual malice that no other newspaper or television station had reported that Stroupe had accused Peeler when this story was aired. However, several newspapers did print quotes from Stroupe stating Peeler's supporters had forged the signatures. "A subjective awareness of probable falsity cannot be demonstrated under the standard of 'convincing clarity' by evidence showing that the publisher and the plaintiff disagreed with respect to their perceptions of events which they both observed." McMurry v. Howard Publications, Inc., 612 P.2d 14 (Wyo.1980). At best, Tedder may have practiced sloppy journalism by referring to Peeler rather than only his supporters, however, there is no evidence in the record that he did so with actual malice.

As to the September 1st newscast, Peeler presented the testimony of Gimball and Hall, the two men interviewed by Tedder. The testimony of these two men does not clearly show...