Richmond Newspapers, Inc. v. Lipscomb

Citation362 S.E.2d 32,234 Va. 277
Decision Date30 October 1987
Docket NumberNo. 840737,840737
Parties, 14 Media L. Rep. 1953 RICHMOND NEWSPAPERS, INC., et al., v. Vernelle M. LIPSCOMB. Record
CourtSupreme Court of Virginia

Page 32

362 S.E.2d 32
234 Va. 277, 14 Media L. Rep. 1953
RICHMOND NEWSPAPERS, INC., et al.,
v.
Vernelle M. LIPSCOMB.
Record No. 840737.
Supreme Court of Virginia.
Oct. 30, 1987.

Page 33

[234 Va. 281] Alexander Wellford (David C. Kohler, Christian, Barton, Epps, Brent & Chappell, Richmond, on briefs), for appellants.

John H. OBrion, Jr. (William Allcott; Carrie L. Camp, Browder, Russell, Morris & Butcher, Richmond, on brief), for appellee.

[234 Va. 277] Present: All the Justices.

[234 Va. 281] WHITING, Justice.

This action for defamation brought by a Richmond public school teacher, Vernelle M. Lipscomb (Lipscomb), against Richmond Newspapers, Inc. (the newspaper), a publisher, and its reporter, Charles E. Cox (Cox), arises out of the publication of a front-page article in the Richmond Times-Dispatch. The trial judge sustained a jury's award of $45,000 in punitive damages against Cox, but required a remittitur of $900,000 of a $1,000,000 compensatory damage award against both defendants. We will affirm the reduced award of compensatory damages but reverse the award of punitive damages.

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I. ISSUES

(1) Was Lipscomb, as a public school teacher, in that class of public officials which can only recover compensatory damages for defamation by establishing the constitutional malice described in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)?

(2) If not, was negligent publication by Cox and the newspaper subsumed in the jury's finding of a publication with reckless disregard for the truth; and, if so, was the evidence in this case sufficient to support a finding of negligent publication?

(3) Was the evidence in this case sufficiently clear and convincing to support the jury's finding of publication by Cox with a reckless disregard for the truth, which Lipscomb must establish to recover punitive damages?

Collateral issues must also be resolved as to the admissibility of an expert's opinion on the standard of care, the obligation of a trial court to segregate potentially defamatory evidence from non-defamatory evidence in its instructions to the jury, and the size of the jury's verdict.

II. FACTS

The news article was in the Sunday newspaper a few weeks prior to the opening of school in the fall of 1981. The article identified[234 Va. 282] Lipscomb by name and said that certain parents and their children:

charge that a Thomas Jefferson High School teacher is disorganized, erratic, forgetful and unfair; that she returns graded papers weeks late and absents herself from the classroom for long periods; that she insists students stick to the rules, and flouts them herself. They say she demeans and humiliates students. The brighter they appear, the likelier they are to suffer at her hands, the parents protest.

One of Lipscomb's colleagues was quoted as saying that the teacher "might be out of her element in dealing with the students found in the honors course where most of the problems seem to have cropped up since the mid-1970's."

Dr. I. David Goldman, a physician and a teacher at the Medical College of Virginia and the father of one of Lipscomb's students, initiated the contact with Cox. Goldman allegedly told Cox that the school's principal "has had enough complaints about Ms. Lipscomb's performance over the years to know that there was trouble."

Another parent, a minister, was quoted as saying that his son was:

so unreasonably and harshly treated [that the parent] told both [the teacher] and her principal that she ought to be ousted from the classroom ... [that] he remembers Ms. Lipscomb as 'totally unbending, [a woman] of no leeway, no compromises, ... [she] was willing to "settle for mediocrity" and conformity.' [The minister also was alleged to have] told the school superintendent ... 'she is not fair, that she is hurting these kids.' I told [the superintendent] 'I will do all I can to get rid of her. She is bad for this system, bad for these kids.'

The article referred to a third parent as "[s]ound[ing] a note heard often: that Ms. Lipscomb is inclined to react in ways the students regard as irrational or harsh when her facts, judgment or authority are questioned. 'I think she has a bias against bright kids. Maybe she's afraid of them.' " A fourth parent described her child as one "with a long record of good grades [who] hits Ms. Lipscomb's class and winds up with a 'D.' "

[234 Va. 283] The article quoted a student as saying, "She [Ms. Lipscomb] was patronizing, she was late for class, and she was missing from class a third of the time. When she was present she was so disorganized that few if any of [my] classmates understood what was expected of them. She didn't teach, I really learned nothing ... her verbal excesses ... caused ... pain, I cried in class, I cried outside her class." Another student was quoted as saying she was a victim of the teacher's harassment tactics, "[i]f I asked her a question, she would come back with something like, 'That's a stupid question.' " Dr. Goldman's daughter allegedly told the reporter that, "[Ms. Lipscomb] seemed to hate what I represented,

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meaning middle-class, bright, articulate, assertive, questioning.... I questioned her grades, I questioned her before the others in the class. She really didn't like it [and] she was always chipping away at our self-confidence."

A final student quoted said that the teacher's:

verbal excess made me bawl right there in class, not once but twice. [Lipscomb's] students in the past year were always unsettled about what she would do next. She is just not a teacher. She would assign a test and we'd sit up half the night studying. When we got there in the morning, she'd say we won't take it. No reason. Or she'd just forget assigning us a test. She lost papers we turned in. She's totally unfitted to be in that class.

The negative comments essentially were repeated in the trial testimony of the individuals quoted. On the other hand, a number of students, teachers, and school administrators contradicted those complaints.

Cox essentially confined his investigative activities to interviews with the complaining parents and students and to telephone conferences with Lipscomb's principal and two of Lipscomb's teaching colleagues. He obtained very little information from Lipscomb and the other school employees. The school board's attorney had advised Lipscomb and certain school administrative officials not to discuss the details of the Goldman complaints because of the law dealing with confidentiality of both student and individual teacher records and his fear of litigation over the Goldman issue with Lipscomb as a possible defendant.

234 Va. 284

III. WHETHER LIPSCOMB WAS A NEW YORK TIMES "PUBLIC OFFICIAL"

We first consider whether the trial court correctly required Lipscomb to prove publication with a reckless disregard for the truth in her claim for compensatory damages. The answer to this question hinges upon whether the trial court properly classified Lipscomb as a "public official" under the New York Times malice rule.

New York Times prohibits "a public official from recovering 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." 376 U.S. at 279-80, 84 S.Ct. at 726. "Actual malice" as described in New York Times might be confused with common law malice, which involves "motives of personal spite, or ill-will," The Gazette v. Harris, 229 Va. 1, 18, 325 S.E.2d 713, 727, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 643 (1985); Story v. Newspapers, Inc., 202 Va. 588, 590, 118 S.E.2d 668, 670 (1961). Therefore, we will refer to such actual malice as "New York Times " malice.

The Supreme Court said in New York Times v. Sullivan "[w]e have no occasion here to determine how far down into the lower ranks of government employees the 'public official' designation would extend for purposes of this rule." 376 U.S. at 283 n. 23, 84 S.Ct. at 727 n. 23. In Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8, 99 S.Ct. 2675, 2680 n. 8, 61 L.Ed.2d 411 (1979), the Supreme Court pointed out that it "has not provided precise boundaries for the category of 'public official'; it cannot be thought to include all public employees, however." Nevertheless, that Court has left little doubt that other courts are to determine who is a "public official" in accordance with "the purposes of a national constitutional protection," Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966), and not by reference to state law standards.

The following United States Supreme Court cases give some guidance. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court observed that:

The first remedy of any victim of defamation is self-help--using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials ... usually enjoy significantly greater access to the channels of effective

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communication [234 Va. 285] and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.

Id. 418 U.S. at 344, 94 S.Ct. at 3009 (footnote omitted). The Gertz Court accorded private person status to an attorney who was not on the public payroll. Id. at 352, 94 S.Ct. at 3013. Although Lipscomb was on the public payroll, we believe attorneys have significantly more access than teachers to the media and a more realistic opportunity to answer false charges about their competence. We must also keep in mind that Lipscomb probably could not have answered these charges fully without disclosing other students'...

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