Vandenburg v. Newsweek, Inc.

• Decision Date: 12 February 1975
• Docket Number: No. 74-1318,74-1318
• Citation: 507 F.2d 1024
• Parties: 1 Media L. Rep. 1758 Wayne VANDENBURG, Plaintiff-Appellant-Cross-Appellee, v. NEWSWEEK, INC., Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1024

507 F.2d 1024

1 Media L. Rep. 1758

Wayne VANDENBURG, Plaintiff-Appellant-Cross-Appellee, v. NEWSWEEK, INC., Defendant-Appellee-Cross-Appellant.

No. 74-1318.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1975.

Francis C. Broaddus, Jr., Williams & Ellington, El Paso, Tex., for plaintiff-appellant-cross-appellee.

Richard Munzinger, Schuyler B. Marshall, El Paso, Tex., Stanley Godofsky, Leo P. Larkin, Jr., New York City, for defendant-appellee-cross-appellant.

Appeals from the United States District Court for the Western District of Texas.

Before RIVES, GODBOLD and GEE, Circuit Judges.

GEE, Circuit Judge:

On this diversity libel suit's previous trip to our court, we affirmed denial of Newsweek's motion for summary judgment but cautioned 'against attempting to glean from this decision any whisper of what the outcome should be on a motion for directed verdict, on the final verdict, or on a motion for judgment n.o.v.' Vandenburg v. Newsweek, Inc., 441 F.2d 378, 380 (5th Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 49, 30 L.Ed.2d 108 (1971). Unable to forecast then what our opinion would be, the parties are again before us on appeal from a judgment n.o.v. favoring Newsweek.

The alleged libel is contained in an article which appeared in Newsweek's July 15, 1968 issue. Entitled 'The Angry Black Athlete,' it dealt generally with the black power movement and its effect on college and university athletics. Vandenburg complains of two paragraphs:

It is a mess that extends from Niagara to the University of California, from Michigan to the University of Texas at El Paso. Sometimes the racial issue is inflamed by a coach's gettough policy. 'i could give in to a lot of Negro demands,' says one Southwestern track coach, 'and keep my team intact. But someone has to hold the line against these people.'

At El Paso, track coach Wayne Vandenburg threatened to kick six athletes off the team if they joined the boycott of the New York Athletic Club indoor meet in February. The club was charged with discriminatory membership policies. Vandenburg won and the athletes competed. But two months later, after a talk with Harry Edwards, the same athletes refused to enter a meet at Brigham Young University in Utah because of Mormon doctrines about blacks. Vandenburg promptly dropped champion long-jumper Bob Beamon and five others from the squad.

After testimony, the case was submitted to the jury, who returned a $130,000 verdict for Vandenburg. Ten months later the trial court granted Newsweek's motion for judgment n.o.v., finding Vandenburg had failed to establish elements essential to his case. Vandenburg appeals; Newsweek asserts points on cross appeal, conditioned on our deciding Vandenburg's claims. Finding the judgment n.o.v. justified by Vandenburg's failure to establish actual malice, we affirm the trial court.

In a libel action brought by a public figure ¹ or a public official, the plaintiff must satisfy the New York Times standard; that is, he 'may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.' Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, 807 (1974). See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (leading case). State-law definition of actual malice conforms, as it must, to this constitutionally-based privilege. El Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 405 (Tex.1969).

The New York Times test represents recognition that the freedoms of press and speech are essential to that wideopen discussion of public issues deemed so important by our founders to the continued existence our governmental syatem. ² Further, the test is recognition 'that erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive' . . ..' New York Times Co. v. Sullivan, supra at 271-272, 84 S.Ct. at 721. The public figure or public official generally has placed himself in a position inviting comment and has meaningful opportunity to rebut the alleged libel, so state interest in protecting the individual from damage to reputation is less compelling. Gertz v. Welch, supra, 418 U.S. at 343-345, 94 S.Ct. at 3009, 41 L.Ed.2d at 807-808. The balance is thus struck to limit the possibility of a selfcensorship detrimental to the political and social system as a whole, despite the fact that deserving public persons may in some cases be unable to meet the stringent requirements of the New York Times test. Id. 418 U.S. at 343, 94 S.Ct. at 3008-3009, 41 L.Ed.2d at 807.

We assume arguendo that the statement at issue contained inaccuracies. As stated above, in order to establish actual malice under Sullivan Standards, the plaintiff must show respondent had actual knowledge of falsity or reckless disregard of same. This is not a proposition that can be supported by a normative conclusion that the publisher should have known of the falsity of the statement. Rather, evidence-- direct or circumstantial-- of the publisher's subjective awareness is required. If plaintiff cannot show the publisher knew that the publication was false, he must show reckless disregard. '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.' St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Negligent reporting methods are insufficient. New York Times Co. v. Sullivan, supra, 376 U.S. at 288, 84 S.Ct. 710. On the other hand, when the story is not 'hot news,' as is the case here, the investigation must be more thorough, and 'actual malice may be inferred when the investigation . . . was grossly inadequate in the circumstances.' Vandenburg v. Newsweek, Inc., supra, 441 F.2d at 380.

Remembering that evidence of actual malice must be clear and convincing, more than a preponderance, we proceed-- as we should in First Amendment cases of this sort-- to make an independent examination of the record. ³

The New York Athletic Club (NYAC) meet, held in early 1968, was the focal point of black organizers' activities. Charging the club with discriminatory practices, the leaders of the protest urged Negro athletes to boycott the meet and organized picket lines. Only nine black athletes crossed the picket lines to participate in the NYAC meet; all six University of Texas at El Paso (UTEP) black athletes did so. ⁴ As his first piece of evidence tending to show actual malice, Vandenburg points to a Sports Illustrated article, authored by Axthelm close to the time of the NYAC meet, reporting Coach Vandenburg's explanation of his own role in the UTEP athletes' decision to participate as follows: 'I asked each one if he wanted to come . . . and each one said yes. There was no pressure. I told them again tonight that they could back out and I'd never hold it against them.' The Sports Illustrated article also stated that Bob Beamon, a UTEP athlete, had decided to participate in the meet so he could visit his family home in New York. As admitted by Axthelm himself, this story is contrary to the later Newsweek version reporting Vandenburg's threats to his team. Vandenburg makes much of this fact, along with the circumstances that 'The Angry Black Athlete' was Axthelm's first cover story for Newsweek and that Axthelm intended-- indeed solicited information-- to cover one side of the black athlete's movement only, to show actual malice. Further, he points to Axthelm's failure to re-interview him or talk to the athletes involved, the NYAC officials or other UTEP officials before publishing his contrary version in Newsweek. As explanation, Axthelm proffers events at and subsequent to the NYAC meet and reports from sources he believes reliable. First, few blacks competed in the NYAC competition due to the boycott and picketing; all the UTEP athletes entered Madison Square Garden to compete. Also, it is fact that later some UTEP athletes refused to participate in a meet at Brigham Young University for racial reasons and as a result were no longer members of the UTEP track team. These facts could reasonably raise doubt about Vandenburg's earlier assertion, despite other press reports carrying Vandenburg's version. Secondly, Samuel Skinner and Harry Edwards provided information to Axthelm which led to publication of the Newsweek story. Skinner's deposition, introduced at trial, confirms Axthelm's uncontradicted testimony that Skinner was one source of the NYAC information. Harry Edwards testified that he had told Axthelm that the NYAC threat story had been confirmed by a UTEP track team member.

Vandenburg does not seriously dispute that Axthelm received the information as described. The issue, then, is whether Vandenburg had reason to think it false, reason to question the reliability of his sources or to investigate further given all the circumstances. Here, it is true, Axthelm's knowledge of Coach Vandenburg's previous statement about giving the UTEP track athletes freedom to choose whether to compete or not put Axthelm on notice that a more careful investigation was required, Curtis Publishing Co. v. Butts, supra, 388 U.S. at 157, 87 S.Ct. 1975, as did his...