Summary
hinting that the Colorado Supreme Court has misplaced the actual-malice standard developed for "`good faith critics of public officials'"
Summary of this case from Turf Lawnmower Repair v. Bergen Record Corp.Opinion
No. 79SC160
Decided October 26, 1981. Rehearing denied November 16, 1981.
Certiorari to the Colorado Court of Appeals
Roath Brega, P.C., Charles F. Brega, J. Stephen McGuire, for petitioners Kuhn and Morrell.
Robert E. Ray, for petitioner Wright.
Southard and Ashlock, William H. Southard, Lawrence Ashlock; Wahl and Gabel, Harold B. Wahl, for respondents.
En Banc.
We granted certiorari to review the decision of the Colorado Court of Appeals in Kuhn v. Tribune-Republican Publishing Company, 637 P.2d 395 (Colo.App. 1979). The Court of Appeals reversed a jury verdict for the petitioners Leon Kuhn, Peter A. Morrell, and Richard Keven Wright in their libel suit against the respondents Tribune-Republican Publishing Company, doing business as The Greeley Daily Tribune (Tribune), and John Seelmeyer, one of its reporters. We reverse the decision of the Court of Appeals and reinstate the jury verdict.
On January 8, 1976, the Tribune published an article (reproduced in the appendix to this opinion) written by reporter John Seelmeyer about the ski program run by the Greeley Department of Parks and Recreation (department). The article reported that two ski areas, Lake Eldora and Hidden Valley, sent complimentary season lift passes to the department. Trial testimony indicated that historically the department's winter program included group ski lift ticket purchases and transportation to one or more nearby mountain ski areas. In the fall of 1975, department officials chose the Lake Eldora and Hidden Valley areas for the group program. Seelmeyer's article implied that the areas were chosen because they provided ski passes for the personal use of the petitioners Kuhn, the director of the department, Morrell, the city manager, and Wright, an employee of the department and director of its ski program.
Based on the publication of this article, the petitioners filed a libel suit seeking actual and punitive damages from the respondents. The respondents moved for a summary judgment and directed verdict, claiming that statements in the article were substantially true, constituted fair comment, were privileged under the First Amendment to the United States Constitution standards for statements relating to a public official, and were made without actual malice. The district court denied the motions, and the jury returned a verdict for the petitioners in the amount of $69,500. The trial court denied the respondents' motions for judgment notwithstanding the verdict and for a new trial.
The petitioners' award was divided by the jury as follows:
(1) For Kuhn: $15,000 actual damages } from Tribune 5,000 punitive damages } 1,000 actual damages } from Seelmeyer 500 punitive damages } ------- $21,500
(2) For Morrell: $20,000 actual damages } from Tribune 5,000 punitive damages } 1,000 actual damages } from Seelmeyer 500 punitive damages } ------- $26,500
(3) For Wright: $15,000 actual damages } from Tribune 5,000 punitive damages } 1,000 actual damages } from Seelmeyer 500 punitive damages } ------- $21,500
The Court of Appeals reversed, holding that under the standards established by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the petitioners, admittedly public officials, had failed to prove by clear and convincing evidence that the statements in the articles were false or defamatory, or published with actual knowledge that they were false or with reckless disregard as to whether they were false or not. The Court of Appeals ruled that the trial court should have entered summary judgment or directed a verdict in favor of the respondents.
We held in DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980), that the usual rule disfavoring summary judgment may be altered in defamation cases involving media defendants in order to prevent the chilling effect on media communication of protracted litigation. However, after the Court of Appeals ruling in this case, we held in Manuel v. Fort Collins Newspapers, Inc., 631 P.2d 1114 (Colo. 1981), that the First Amendment interest in avoiding the chilling effect of lengthy litigation does not require that a publisher's motion for summary judgment be reconsidered on appeal in cases where a trial on the merits has already taken place. Consequently, the trial court's denial of the respondents' motion for summary judgment was not subject to reversal by the Court of Appeals.
We disagree with the Court of Appeals' conclusion that the petitioners' evidence at trial was insufficient to persuade a reasonable factfinder clearly and convincingly that the respondents' publication was false and made with actual malice. To the contrary, we conclude that the petitioners proved that the respondents did not comply with the minimal standard of care prescribed by New York Times Co. v. Sullivan. Our review of the entire record assures us that the jury clearly could have been convinced that the respondents evidenced a reckless disregard for the truth or falsity of their publication.
I.
The newspaper article in issue is actually a hybrid of two stories. John Seelmeyer, the reporter, first intended to write about a grievance voiced at a city council meeting on January 6, 1976, by Richard Perchlik, the owner of the Sharktooth ski area near Greeley and a former mayor of Greeley. Perchlik complained that the department had placed newspaper and radio advertisements promoting their week-end bus trips to the Lake Eldora and Hidden Valley ski areas, but had not advertised the Sharktooth area. Seelmeyer told his managing editor he would prepare the story about Perchlik's complaint for the January 8, 1976 afternoon edition of the Tribune.
However, before Seelmeyer wrote the article, he spoke with a colleague, another reporter for the Tribune, who suggested that Seelmeyer investigate whether the department had received any free ski passes. The colleague, who himself had worked for the department some six years earlier, told Seelmeyer that a department supervisor, no longer employed by the department, had at that time received such a pass. Acting on this suggestion, Seelmeyer changed the thrust of his original city council meeting story, adding a section purportedly exposing corruption in the Greeley city government. Seelmeyer's allegation in this portion that the petitioners' receipt of free ski passes influenced them to include Lake Eldora and Hidden Valley ski areas in the city's ski program constituted the complained-of defamation of the petitioners.
At trial, Seelmeyer admitted that there was no particular need to publish the portion of the article concerning the ski passes on the day that he began his investigation. Nevertheless, he spent only two hours investigating and thirty minutes writing the story to meet the 11 a.m. press deadline for the January 8th edition. Seelmeyer's investigation included brief telephone conversations with Kuhn, the department director, and Wright, the department employee responsible for the ski program. Seelmeyer discussed the passes for four or five minutes with Wright, who told him the number of passes received and explained that they were used by bus supervisors and chaperones on the department-sponsored, week-end trips. At trial Wright testified that representatives from the ski areas had visited the department during the summer to provide information about their group discounts but that Seelmeyer did not ask him when the department received the passes or set up its program.
Seelmeyer then called Morrell, the city manager, about the City of Greeley's policy respecting gifts. Morrell denied that anyone was "taking graft." Seelmeyer also anonymously spoke with the person who answered the phone in the city purchasing department about the dollar amount which would trigger its competitive bidding requirements. He then called two ski shops and Colorado Ski Country USA to ascertain the value of the passes. Other anonymous calls were made to Hidden Valley and Lake Eldora to determine if city officials had used the passes. Personnel at both ski areas told Seelmeyer that they did not maintain records that would yield the requested information. He called Dr. Perchlik, the owner of Sharktooth ski area, to inquire if the distribution of free passes was a common practice.
Seelmeyer did not include information from Perchlik that Perchlik gave free Sharktooth passes to all public officials in the Greeley area.
Although uncorroborated by the information received from these sources, the following factual assertions appeared in Seelmeyer's article: that the dollar amount of skiing business directed to Hidden Valley and Lake Eldora was $7,600.00, that recreation officials accepted free passes, that the two resorts were chosen after the passes were left with city recreation officials, and that the program was subject to the city's competitive bidding requirements. At trial, Seelmeyer admitted that he did not ask when the passes were received, whether recreation officials personally used the passes, where the passes were kept, or if someone personally delivered them. He explained that he did not want to ask city officials about personal use of the passes because he did not think they would be an objective source. He also testified that he worded the story so as to imply that recreation officials personally accepted the passes because, although he knew that the passes were given to the department, he wanted to "humanize" the story, and that when he wrote the story he did not know and did not care whether competitive bidding was required for a ski program or whether the city had any contractual obligations for the program. He admitted that he had no knowledgeable sources for most of his story.
It was established at trial that no recreation officials used the passes, which were kept in the department's safe, and that the passes were mailed to the department in late October and early November, a month or more after the city had notified Lake Eldora and Hidden Valley that they would participate in their group skiing program.
II.
First Amendment questions of "constitutional fact" compel our de novo appellate review. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450 (1975). Our task is to ascertain whether sufficient clear and convincing evidence was adduced to permit the jury to conclude, after deciding questions of credibility and drawing permissible inferences in the petitioners' favor, that the respondents acted with reckless disregard for the truth. New York Times Co. v. Sullivan, supra; St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Rosenbloom v. Metromedia, Inc., supra; Alioto v. Cowles Communications, Inc., 529 F.2d 777 (9th Cir. 1975); Guam Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d 438 (9th Cir. 1974), cert. den. 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974).
In New York Times Co. v. Sullivan, the Supreme Court substantially altered traditional defamation standards which require only that the plaintiff prove publication of false statements damaging to his reputation. In the New York Times case, the Court ruled that a public official suing a newspaper for libel must bear the burden of showing by clear and convincing evidence that the defamatory publication was made with "actual malice" — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. See, e.g., Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). This actual malice standard was meant to remove the inhibitory effect of defamation laws, in essence creating a constitutional privilege for good faith critics of public officials. In denying recovery where publication was made in good faith, even if the publication is erroneous and defamatory, St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct., 1323, 20 L.Ed.2d 262 (1968), the actual malice standard acknowledges that to some extent at least, "erroneous statement is inevitable in free debate . . . ." New York Times Co. v. Sullivan, supra, at 271-72, 84 S.Ct. at 721, 11 L.Ed.2d at 701.
Here, a jury could reasonably find that the publication failed even to meet this generous standard. Seelmeyer admitted that he had no bases for most of his erroneous statements, and that he failed to take the time to corroborate allegations made in the article, even though no particular urgency existed as to the time of publication. Actual malice may be inferred by the finder of fact if an investigation is grossly inadequate. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th Cir. 1975). In this context, a reporter's failure to pursue the most obvious available sources of possible corroboration or refutation may clearly and convincingly evidence a reckless disregard for the truth. Alioto v. Cowles Communications, Inc., supra.
Failure to verify statements made in the article meant that many of the "facts" about the ski passes "exposed" by the article were, essentially, fabrications. Fabrication of the facts in a newspaper report does not enjoy First Amendment protection. St. Amant v. Thompson, supra, at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 267-68 (1968); Garrison v. Louisiana, 379 U.S. 64, 75 85 S.Ct. 209, 216 13 L.Ed.2d 125, 133 (1964). Untruthful speech has never been protected for its own sake, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Gertz v. Robert Welch, Inc., supra, for "[n]either lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation." St. Amant v. Thompson, supra, at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 267.
The evidence in this case was sufficiently clear and convincing that a jury could conclude that the respondents published the article with reckless disregard for the truth. When one fails to contact and question obvious available sources of corroboration, fabricates specific facts appearing in a story, and writes the story in a manner calculated to invite a factual inference that the newspaper has uncovered governmental corruption and bribery, one knowingly risks the likelihood that the statements and inferences are false and thereby forfeits First Amendment protections.
The opinion of the Court of Appeals is reversed and the jury verdict is reinstated.
JUSTICE ROVIRA and JUSTICE LOHR dissent.
APPENDIX CITY'S RECREATION SKI PROGRAM DRAWS CRITICISM FROM PERCHLIK
By JOHN SEELMEYERTribune Staff Writer
About $7,600 worth of skiing business was directed to two Colorado resorts this winter after Greeley recreation officials accepted free passes valued at more that $700.
Even though the $7,600 figure is above the level ordinarily requiring competitive bidding, recreation officials didn't call for bids on the "Learn to Ski" program.
The Tribune learned the ski programs sponsored by the city were directed to Hidden Valley and Lake Eldora after salesmen for the two resorts left season passes with city recreation officials.
The Hidden Valley pass is worth $85 while the Lake Eldora pass is worth $150.
In addition, the two resorts arranged to give recreation officials a one-day tow ticket for every 20 persons who take the city's ski bus on weekend trips. On a typical weekend, that means officials receive two Lake Eldora passes valued at $7 each and five Hidden Valley passes worth $5.75 each.
Over the 10-week program, that amounts to one-day passes worth $485.
A rival ski operator, Richard Perchlik of the Sharktooth area west of Greeley, questioned the recreation department's procedures at Tuesday's city council meeting.
Perchlik charged his area wasn't included in a city brochure listing ski programs because Kevin Wright, recreation official who runs the ski program, mistakenly believed Sharktooth wasn't in operation.
Sharktooth was listed on an insert to the brochure after Perchlik pointed out the error in November.
Later, Perchlik charged, the recreation department ran newspaper and radio ads promoting programs at Lake Eldora and Hidden Valley, but again ignoring Sharktooth.
"I don't expect the city to run ads for my business or any other business," Perchlik said in an interview Thursday. The ads cost $164, according to Recreation Director Leon Kuhn.
Perchlik, former Greeley mayor, also said he believes the city's ski business should have been opened for competitive bidding.
City policy calls for contracts involving more than $2,000 to be advertised for bid.
Perchlik said bids on the "Learn to Ski" program probably could have resulted in lower prices for the 320 persons who are expected to participate this year.
Recreation officials said their selection of the two mountain resorts represented an attempt to provide the highest quality program.
He said selection of the areas was based on their proximity to Greeley and the quality of program offered.
Wright said the recreation department is approached by several ski areas every summer and salesmen usually leave season passes.
The arrangement for one-day passes allows supervisors traveling on the ski buses to ski free, Wright said.
At Tuesday's council meeting, City Manager Pete Morrell said selection of Lake Eldora and Hidden Valley was "a judgment call by Leon (Kuhn) on the program we should participate in."
Council members scolded Morrell and Kuhn for their handling of the ski program and told them to include Sharktooth in future advertising.
On the issue of receiving free passes, Morrell said later the city doesn't have a written policy on gifts.
He said several businesses — including movie theaters — offer passes and other gifts to city officials in most cities. Morrell said each official makes his own decision whether to keep the gift.
He added, however, "We're not taking any graft."