Thuma v. Hearst Corporation, Civ. No. 70-1048.

• Decision Date: 29 March 1972
• Docket Number: Civ. No. 70-1048.
• Citation: 340 F. Supp. 867
• Parties: Harry Warren THUMA v. The HEARST CORPORATION, a body corporate of the State of Delaware.
• Court: U.S. District Court — District of Maryland

340 F. Supp. 867

Harry Warren THUMA

v.

The HEARST CORPORATION, a body corporate of the State of Delaware.

Civ. No. 70-1048.

United States District Court, D. Maryland.

March 29, 1972.

William W. Cahill, Jr., and Weinberg & Green, Baltimore, Md., for plaintiff.

James J. Doyle, Jr., John B. Jaske and Sherbow, Shea & Doyle, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, District Judge.

In this libel action, Thuma, a captain in the Baltimore County police force and commander of the Parkville police district in that county, seeks damages, contending that The Hearst Corporation (Hearst) violated the standards of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).¹ Hearst has moved for summary judgment. The essential facts are undisputed, at least in their current summary judgment context.

Hearst, publisher of a daily newspaper widely disseminated in the metropolitan Baltimore area, including the section of that area in which Thuma resides and is stationed, published on October 14, 1969 and again on October 29, 1969 articles written by one of its reporters, Richard Irwin. Those articles include statements by family, friends and neighbors of Thomas Talbott, a 16-year old boy, who was shot by Thuma after members of the police force, including Thuma, were called to the Talbott home following misbehavior by the boy. Inter alia, each of those articles quotes a reference by the boy's father to the shooting as "cold-blooded murder."

In New York Times v. Sullivan, supra, the Supreme Court reversed a judgment in a libel action instituted by an elected commissioner of the City of Montgomery, whose duties included supervision of that city's police department. That action was based upon the publication by the Times of a full-page advertisement, purchased by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South," in which unfavorable references, some inaccurate, were made concerning the Montgomery police. The basic thrust of New York Times and its progeny is that the First Amendment's protection of freedom of speech, as applied to the states by the Fourteenth Amendment, prohibits the states, through common law libel actions instituted by plaintiffs seeking damages, from imposing penalties upon the dissemination of statements pertaining to matters of public concern. In New York Times itself, Mr. Justice Brennan wrote (at 279-280, 84 S.Ct. at 726):

The constitutional guarantees require, we think, a federal rule that 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.

In Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 28 L.Ed.2d 45 (1969), a Chicago deputy chief of police was deemed to be a "public official." Thus, it seems clear that Thuma, a police captain, is a "public official" as those two words are used in New York Times.² In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), a public official was held by the Supreme Court not to have sustained the burden of proving that false statements about him were made with "actual malice" as defined in New York Times. In St. Amant, Mr. Justice White wrote (at 730-732, 88 S.Ct. at 1325):

"Reckless disregard," it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law. Our cases, however, have furnished meaningful guidance for the further definition of a reckless publication. In New York Times, supra, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), also decided before the decision of the Louisiana Supreme Court in this case, the opinion emphasized the necessity for a showing that a false publication was made with a "high degree of awareness of ... probable falsity." 379 U.S. at 74, 85 S.Ct., at 216 13 L.Ed.2d at 133. Mr. Justice Harlan's opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 1110 (1967), stated that evidence of either deliberate falsification or reckless publication "despite the publisher's awareness of probable falsity" was essential to recovery by public officials in defamation actions. These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

* * * * * *

The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Footnote omitted.

A similar holding and a similar application of New York Times are set forth in Time, Inc. v. Pape, supra.

It appears undisputed that Irwin, and therefore Hearst, accurately and truthfully reported what had been said by the family, friends and neighbors of the Talbott boy when they were interviewed by Irwin. Thus, the facts in the within case are similar to those in Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 12-13, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970), in which the Supreme Court unanimously reversed a judgment in favor of the plaintiff and remanded the case for further proceedings. Mr. Justice Stewart, in the majority opinion, wrote:

It is not disputed that the articles published in the petitioners' newspaper were accurate and truthful reports of what had been said at the public hearings before the city council. In this sense, therefore, it cannot even be claimed that the petitioners were guilty of any "departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers," Curtis Publishing Co. v. Butts, supra 388 U.S. at 155 87 S.Ct. 1975, at 1991, 18 L.Ed.2d at 1111 (opinion of Harlan, J.), much less the knowing use of falsehood or a reckless disregard of whether the statements made were true or false. New York Times Co. v. Sullivan, supra 376 U.S. at 280 84 S.Ct. 710, at 726, 11 L.Ed.2d 706. Footnote omitted.

In Greenbelt, the Supreme Court held that the reporting by a small weekly newspaper of statements made by persons during public meetings of the Greenbelt City Council that a prominent real estate developer and builder in Greenbelt and a member of the Maryland House of Delegates from a neighboring district, who was then negotiating with the council in connection with land owned by him and sought by the council, was guilty of "blackmail," did not charge commission of the felony of blackmail. The Court wrote (at 14, 90 S.Ct. at 1542):

It is simply impossible to believe that a reader who reached the word "blackmail" in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. * * * On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime. Emphasis supplied.

In essence, in the case at bar, Thuma complains generally about the reporting by Irwin of the opinions of certain members and friends of the Talbott family that the shooting was unnecessary and zeroes in particularly upon two sentences in the two articles, both of which sentences state that Talbott's father had labelled the shooting of his son as "cold-blooded murder."

Defendant, in support of its motion for summary judgment, has filed affidavits of Irwin and of Edward Ballard, who was in October, 1960 city editor of the News American, that is, the newspaper involved herein. Both affiants have stated that neither of them (and in Ballard's case, his staff) had any reason to know that any portion of the articles contained any false statement. In resisting summary judgment herein, plaintiff does not challenge the credibility of either Irwin or Ballard. Rather, plaintiff relies upon testimony given by Irwin during a deposition proceeding, in which Irwin, who had been a uniformed Baltimore City police officer before he became a reporter, testified³ that at the time of publication, "whether the shooting was cold-blooded murder or not, I didn't know, and I sincerely doubted it,"⁴ and that "I had no reason to believe it was cold-blooded murder,"⁵ and "absent a quote" Irwin "would ... not have ... labelled the matter cold-blooded murder...