UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
WASHINGTON POST, a Delaware Corporation, et al.
On Petition to the Panel for Rehearing. 1985.CDC.128
WRIGHT and SCALIA, Circuit Judges, and MACKINNON, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge MACKINNON. Dissenting statement filed by Circuit Judge WRIGHT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
Attorneys for the Washington Post Co. and Patrick Tyler have requested this division of the court to rehear the foregoing decision. *fn1 However, the argumentative support for the petition is fatally defective in three principal respects, among others.
First, it ignores the evidence of record and misrepresents the court's decision as a general "disparagement of investigative reporting" that seeks to premise "constitutional malice" on pure "hard-hitting investigative stories [and] . . . high-impact investigative stories of wrongdoing . . . [by a] newspaper [that] is generally vigorous in its efforts to seek out and report the news." Petition at 2-3. That description completely refuses to recognize the evidence of very substantial "pressures" and lax editorial processes that were fully developed in the record and that contributed materially to the finding by the jury that the Post article on Tavoulareas recklessly disregarded the truth. Media advocates, like those who have filed an amicus brief in support of rehearing, should take a hard look at the evidence in this case before attempting to come to the defense of the Post's so-called "investigative reporting" as it appears in this transcript. It is not normal "investigative reporting."
Second, the Petition for Rehearing contains not one line recognizing the reality that the Post is confronted with an adverse jury verdict and that the law applicable to judgments notwithstanding the verdict (j.n.o.v.) does not confer free reign to override the credibility findings inherent in the jury verdict. This case is not like Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 80 L. Ed. 2d 502, 104 S. Ct. 1949, 52 U.S.L.W. 4513 (1984), which involved a bench trial and written findings by the judge. Instead we must first determine what findings of fact the jury verdict could be based upon. Neither the petitioners nor the dissent recognizes this obligation, much less applies the law applicable to jury findings in such cases.
Third, the petition does not face up to the Peterson memorandum, the general unreliability of sources, the permissible effect on the jury verdict of the Post's failure to introduce one line of the deposition of Commas, who was the Post's principal source, and to even recognize that Checket personally contradicted Tyler's written note that he had overheard Tavoulareas stating he personally dispatched Hoffmann to Atlas. This latter point also is contradicted by Wolfe's testimony that he made the decision to send Hoffmann to Atlas (Tr. 1098).
In sum, the Post presented a weak defense highlighted by the complete failure to present one bit of the deposed testimony of the principal source they allegedly relied upon for the story. Their whole defense was dependent upon the credibility of their few witnesses which the jury obviously did not believe -- and the jury was Not required to believe them, because their testimony in its critical aspects was specifically contradicted by plaintiff's witnesses which we find were reasonably believable.
This case required us to perform "the delicate and sensitive task of accommodating the First Amendment's protection of free expression of ideas with the common law's protection of an individual's interest in reputation." Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970, 974 (D.C. Cir. 1984) (en banc), cert., denied, 471 U.S. 1127, 86 L. Ed. 2d 278, 105 S. Ct. 2662, 53 U.S.L.W. 3837 (1985). Our duty was twofold: to protect the "freedom of . . . the press" privilege of the First Amendment and to remedy harm to innocent persons caused by abuse of that privilege. As was recognized in Ollman, this task is by no means new and is clearly a difficult one. The principle that "debate on public issues should be uninhibited, robust, and wide-open," Tavoulareas v. Piro, 245 U.S. App. D.C. 70, 759 F.2d 90 slip op. at 49 (Wright, J., dissenting) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964)), must be reconciled with "an individual's interest in his or her reputation [which] is of the highest order," Ollman (supra) at 974. Again, as was emphasized in Ollman, the protection of one's reputation
is an eloquent expression of the respect historically afforded the dignity of the individual in Anglo-American legal culture. A defamatory statement may destroy an individual's livelihood, wreck his standing in the community, and seriously impair his sense of dignity and self-esteem.
Id. (footnote omitted); accord, Herbert v. Lando, 441 U.S. 153, 169, 60 L. Ed. 2d 115, 99 S. Ct. 1635 (1979).
It is within the framework of New York Times v. Sullivan and its progeny that the two competing interests of robust debate and the justifiable protection of individual reputations must be accommodated. Petitioners Washington Post Co. and Patrick Tyler first argue that the panel opinion "fundamentally alters the very concept of 'actual malice,'" that evidence considered relevant in this case on the actual malice issue has been held by the Supreme Court to have "no bearing" on that issue, and -- principally -- that "cumulation" of the evidence was improper. Petitioners then challenge the standards for appellate review of the jury verdict. We address these arguments below. Those arguments not addressed have been adequately considered in the original opinion.
B. The Actual Malice Standard
The definition of "actual malice" is unmistakably clear: the defamatory falsehood must be made with knowledge of its falsity or with reckless disregard for the truth. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). This test is disjunctive, and the panel opinion finds liability most clearly under the "reckless disregard" standard. Tavoulareas v. Piro, Nos. 83-1604, 1605, Slip. op. at 16 (D.C. Cir. Apr. 9, 1985). Despite present protestations by petitioners to the contrary, the panel opinion points out that reckless disregard is not the general tort concept but involves a substantial state of mind inquiry. See, e.g., slip op. at 17 & n.13. The question is whether sufficient evidence was adduced at trial to show that The Washington Post, through its reporters and editors, "in fact entertained serious doubts as to the truth of [the] publication." St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968). This is essentially a fact-bound inquiry, which was resolved against the Post defendants by the jury. Given the wholesale rejection of adverse inferences, and the author's willingness to rely on extravagant speculation to conclude that Tavoulareas' motive in establishing the Mobil-Samarco-Atlas relationship was to benefit his son, it was reasonable for the jury to conclude, as it must have, that the author entertained serious doubts about the truth of the basic charge made by the article.
The defendants' petition represents to this court that "only 'calculated falsehood' is unprotected by the actual malice standard." Petition at 2. This is simply not the law. Garrison v. Louisiana, 379 U.S. 64, 75, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964), stated that both "the knowingly false statement [i.e., calculated falsehood] and the false statement made with reckless disregard of the truth [what we have here], do not enjoy constitutional protection." (Emphasis added). See also Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967) (Opinion of Harlan, J.) (recovery is permitted where "the publication involved was deliberately falsified, or published recklessly despite the publisher's awareness of probable falsity") (emphasis added): id. at 164 (Opinion of Warren, C.J.) ("'ctual malice' is not so restrictive that recovery is limited to situations where there is 'knowing falsehood' on the part of the publisher of false and defamatory matter. 'Reckless disregard' for the truth or falsity, measured by the conduct of the publisher, will also expose him to liability for publishing false material which is injurious to reputation.") (emphasis added).
In Time, Inc. v. Pape, 401 U.S. 279, 291, 28 L. Ed. 2d 45, 91 S. Ct. 633 (1971), the Court, quoting St. Amant (supra) 390 U.S. at 731, returned to its prior opinions which outlined by adjudication the definition of "a reckless publication." New York Times, the Court stated, required a finding that "the publisher was aware of the likelihood that he was circulating false information." Garrison echoed this necessity for a showing that a false publication he made with "a high degree of awareness of . . . probable falsity." 379 U.S. at 74. See also St. Amant, 390 U.S. at 731. And recently in Herbert v. Lando, the Court defined the standard as requiring a "subjective awareness of probable falsity." 441 U.S. at 156 (quoting Gertz, 418 U.S. 323, 335 n.6, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974)). In painstaking fashion, this court's opinion detailed the evidence which, true to Supreme Court precedent, supports this definition of liability. Slip op. at 37-84. It is significant, as noted above, that petitioners presently have left untouched three major categories of evidence relevant to our reinstatement of the jury verdict: (1) the Christine Peterson memorandum, which we found indicated the publisher's "serious doubts"; (2) the reliability of sources (except Comnas, who petitioners presently maintain was reliable2); and (3) the "personally dispatched"-Everett Checket conversation.
It is also most important to note that Peterson, the Post's copy editor, placed the same interpretation on the article as that set forth in the complaint and ...