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Beal v. Bangor Publishing
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MAINE SUPREME JUDICIAL COURT
Decision:	1998 ME 176	
Docket:	Was-97-298
Argued:	June 10, 1998
Decided:	July 17, 1998

Panel: 		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

MELROSE BEAL, et al.

v.

BANGOR PUBLISHING COMPANY, et al.

RUDMAN, J.

	[¶1]  The Bangor Publishing Company and Paul Sylvain (collectively
"Bangor Publishing") appeal from the judgment entered in the Superior
Court (Washington County, Kravchuk, C.J.) following a jury verdict in favor of
Melrose Beal and Betty Beal (collectively "Beal") on Beal's complaint against
Bangor Publishing seeking damages for libel for an article published in the
Bangor Daily News.  Bangor Publishing argues on appeal that the verdict is
based on insufficient evidence.  We affirm the judgment.
	[¶2]  In early February, 1994, a radar gun no longer being used by the
Machias Police Department was loaned to the civilian security division at the
Cutler Naval Communications Center ("Cutler").  When Machias's town
manager was informed that the Machias police department had loaned the
radar gun, he immediately demanded its return because the town's
selectmen had previously voted to offer the radar gun for sale by bid.  The
chief of civilian security at Cutler, Lieutenant Thomas Shea, suspected that
Melrose Beal, a Machias selectman and a civilian security guard at Cutler,
had informed the Machias town manager about the presence of the radar
gun at Cutler.  Shea engaged Beal in a heated telephone conversation
concerning the fact that Beal had gone "off-base" with the fact that the radar
gun was being tested for possible use by Cutler civilian security.  The
exchange between Beal and Shea was so severe that it prompted a complaint
by Beal to Elmer Harmon, president of Beal's union's local.  Harmon
investigated the incident, but ultimately he and Beal decided not to file a
grievance on Beal's behalf.	
	[¶3]  On February 17, 1994, the Bangor Daily News published an
article written by one of its reporters, Paul Sylvain, that concerned the two-
day suspension earned by Machias's chief of police for his role in the
unauthorized loan of the radar gun to Cutler.  This article was followed by
two articles written by Sylvain published on February 22 and 23.  These two
articles contain the subject matter of Beal's libel claim.
	[¶4]  The February 22 article was headlined, "Security guard at Cutler
Navy base reprimanded in radar gun incident."{1}  The article detailed how
Beal had been reprimanded for "breaching national security and violating
conflict of interest rules . . . for going off-base with the information"
concerning the presence of the radar gun at Cutler.  The article also stated
that as a result of the incident Beal had been assigned to a remote part of
the Cutler base where contact with the general public was minimal.  In fact,
Beal was never officially charged with a breach of national security or a
conflict of interest, and his post reassignment had been part of a general
post reassignment occurring months before the radar gun incident.{2} 	
	[¶5]  Beal's case was tried before a jury instructed on the law of
defamation consistent with the court's determination that Beal was a public
official.  The jury returned a verdict in the amount of $125,000 on Melrose
Beal's libel claim and no damages on Betty Beal's loss of consortium claim. 
This appeal followed.{3}

I.

	[¶6]  A public official who brings a defamation suit against critics of his
official conduct must, to succeed in this action, prove that the allegedly
defamatory statements were in fact false and that the statements were made
with "actual malice," that is, that the statements were made with
knowledge of their falsity or with reckless disregard as to whether they
were true or false.  New York Times Co. v. Sullivan, 376 U.S. 254, 283
(1964);  see also True v. Ladner, 513 A.2d 257, 262 (Me. 1986); Michaud v.
Town of Livermore Falls, 381 A.2d 1110, 1113 (Me. 1978).  Actual malice
must be proved by clear and convincing evidence.  See New York Times,
376 U.S. at 285-86; Michaud, 381 A.2d at 1114-15.
	[¶7]  The determination of whether a journalist acts with actual malice
in publishing a defamatory statement involves a subjective inquiry into
whether the author "entertained serious doubts as to the truth of the matter
published."  Tucci v. Guy Gannett Publ'g Co., 464 A.2d 161, 170 (Me. 1983);
see also St. Amant v. Thompson, 390 U.S. 727, 731 (1968).  As the Supreme
Court explained in St. Amant: 

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.

St. Amant, 390 U.S. at 731.

	[¶8]  Rare is the instance in which a defendant journalist admits to
publishing a defamatory article with either knowledge of, or reckless
disregard to, the statement's falsity -- this case is no exception.  We thus
rely on circumstantial evidence, namely the conduct of the journalist, to
determine whether actual malice may be inferred.  See, e.g., Tucci, 464 A.2d
at 169 ("Actual malice may be inferred when an investigation is grossly
inadequate in the circumstances.").  In doing so, we keep in mind that an
"erroneous statement is inevitable in free debate, and . . . must be protected
if the freedoms of expression are to have the breathing space they need . . . 
to survive."  New York Times, 376 U.S. at 271-72 (internal quotations and
citations omitted).  Although New York Times and its progeny protect
journalists and publishers from liability for errors of fact derived from
credible sources, reckless disregard for the truth may be found when a
reporter has "'obvious reasons to doubt the veracity of the informant or the
accuracy of his reports.'"  Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 688 (1989) (quoting St. Amant, 390 U.S. at
732).

II.

	[¶9]  In reviewing a libel action brought by a public figure, we are
constitutionally obligated to apply the standard of review articulated in New
York Times v. Sullivan:

The rule is that we examine for ourselves the statements in issue
and the circumstances under which they were made to see . . . 
whether they are of a character which the principles of the    
First Amendment, as adopted by the Due Process Clause of the
Fourteenth Amendment, protect.  We must make an
independent examination of the whole record, so as to assure
ourselves that the judgment does not constitute a forbidden
intrusion on the field of free expression. 

New York Times, 376 U.S. at 285 (internal quotations and citations
omitted).  The heightened standard of appellate review applies only to the
review of the finding of actual malice, and not to the determination of libel. 
See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514
(1984).  We thus independently review the record to "determine whether
the record establishes actual malice with convincing clarity."  Id. 
	[¶10]  On determinations of credibility, however, we defer to the
factfinder because of the factfinder's unique "'opportunity to observe the
demeanor of the witnesses.'"  Harte-Hanks, 491 U.S. at 688 (quoting Bose,
466 U.S. at 499-500).  We review such credibility determinations for clear
error.  See Harte-Hanks, 491 U.S. at 688.   Ultimately our task in reviewing
a verdict for libel in an action brought by a public official is to determine
what evidence the jury reasonably accepted as credible, and whether this
evidence clearly and convincingly establishes actual malice.  See Harte-
Hanks. Inc., 491 U.S. at 698-90; Eastwood v. National Enquirer, Inc., 123
F.3d 1249, 1252 (9th Cir. 1997).
	

III.

	[¶11]  The "sting" of the February 22 and February 23 articles is found
in the articles' erroneous assertions that Beal had violated Navy security
rules and thus had been reassigned to a remote portion of the Cutler base.{4} 
Bangor Publishing concedes that Beal was never formally charged with any
offense, and that Beal's reassignment occurred months before the radar-gun
incident as part of a general base reassignment affecting all civilian guards at
Cutler.  The logical inference from the article's report of Beal's
reassignment was that the Navy considered Beal to be a security risk
requiring sequestration from the general public.  This defamatory impact of
this assertion exceeds the articles' comparatively vague reports of Beal's
being verbally reprimanded and admonished by the head of security at
Cutler; the articles' treatment of Beal's reassignment erroneously implies
that Beal had been formally charged and found guilty by his superiors at
Cutler of breaching the base's security regulations.  The issue on appeal is
whether these statements were published with knowledge of their falsity or
with reckless disregard as to their truth.
	[¶12]  Beal offered evidence at trial intended to demonstrate that
Sylvain was either aware that his article contained falsities, or that, at a
minimum, Sylvain entertained serious doubts about the accuracy of the
information contained in his article.  Most notably, Beal's union chief
steward Richard Richards testified that he met with Sylvain on February 18
in the local Machias office of the Bangor Daily News, four days before the
article at issue was published.  Richards testified that he told Sylvain at this
meeting that Beal had not filed an official grievance with the union and that
Beal had not been officially reprimanded or disciplined by the Navy officials
at Cutler.{5}  In addition, Richards testified that during this meeting he
explained to Sylvain that Beal's reassignment was not due to the radar gun
incident, but was part of a general reassignment of all civilian security
guards occurring months before the radar gun incident.{6}  
	[¶13]  The jury could have rationally determined Richard's testimony
to be credible.  The jury could have also rationally rejected the rebuttal
evidence Sylvain offered to demonstrate that he relied upon credible
sources who provided him with a different account of Cutler's response to
Beal's involvement in the radar gun incident.  With this credibility
determination in mind, we conclude that clear and convincing evidence
supports the determination that Sylvain's article contains defamatory
statements made with knowledge of their falsity or with reckless disregard
as to whether they were true or false.
	The entry is:
Judgment affirmed.
                                                                         
Attorney for plaintiff:

Thomas R. Watson, Esq., (orally)
McTeague, Higbee, MacAdam, Case, Watson & Cohen, P.A.
P O Box 5000
Topsham, ME 04086-5000

Attorneys for defendant:

Bernard J. Kubetz, Esq., (orally)
Thad B. Zmistowski, Esq.
Eaton, Peabody, Bradford & Veague, P.A.
P O Box 1210
Bangor, ME 04402-1210