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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Wayne Elder, Respondent,

v.

The Gaffney Ledger, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Cherokee County

Larry R. Patterson, Circuit Court Judge

Opinion No. 25153

Heard March 22, 2000 - Filed June 19, 2000

REVERSED

Jay Bender and Charles E. Baker, of Baker, Ravenel

and Bender, of Columbia, for petitioner.

Patrick E. Knie, of Spartanburg, and Kenneth L.

Holland, of Gaffney, for respondent.

WALLER, A.J.: We granted certiorari to review the Court of Appeals'

opinion in Elder v. Gaffney Ledger, 333 S.C. 651, 511 S.E.2d 383 (Ct. App.

1999). We reverse.

p.274

FACTS

This is a defamation case. Respondent Wayne Elder, was Chief of Police

for the town of Blacksburg. 1 On May 17, 1995, Petitioner, the Gaffney Ledger

(Newspaper), printed the following in its "What's Your Beef?" 2 column:

Are the drug dealers paying?

I'd like to know what the people think about this. The Chief of the

Blacksburg Police Department knows that these people are selling

drugs and they have been selling them many years and he hasn't

done anything about it. Now I often wonder if the drug dealers are

paying the Chief of Blacksburg. And too, I would like to know why

the Gaffney police have to go over there and work in the police

department and do their work because they work here in Cherokee

County. Don't they have enough money over there to hire

Blacksburg police to do their jobs?

The editor of the paper, Cody Sossamon, made the decision to publish the above

item which was phoned into the Newspaper by an anonymous caller. Although

Sossamon wrote the caption, he testified he did not intend to suggest an answer

to readers. However, Sossamon testified he himself believed drug dealers could

be paying the chief.

After publication of the column, Elder brought this libel action. The jury

awarded him $10,000 in actual damages and $300,000 in punitive damages

The Court of Appeals affirmed.

ISSUE 3

2 "What's Your Beef?" is an opinion column in which readers are invited

to telephone the newspaper and express their opinion or "tell [the paper] what

[they] think" on an answering machine. Callers need not identify themselves.

3 In light of our holding, we find it unnecessary to address Newspaper's

contention that the phrase "Now I often wonder if the drug dealers are paying

the Chief' is incapable of a defamatory meaning.

p.274

The sole issue we need address is whether there was sufficient

evidence of constitutional actual malice to withstand Newspaper's

motion for directed verdict.

DISCUSSION

In defamation actions involving a "public official" or "public figure," the

plaintiff must prove the statement was made with "actual malice," i.e., with

either knowledge that it was false or reckless disregard for its truth. New York

Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S.

323 (1974). See also Holtzscheiter v. Thomson News, Inc., 332 S.C. 502, 506

S.E.2d 497 (1998)(Toal, J., concurring). Whether the evidence is sufficient to

support a finding of actual malice is a question of law. Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657, 685 (1989). When

reviewing an actual malice determination, this Court is obligated to

independently examine the entire record to determine whether the evidence

sufficiently supports a finding of actual malice. Miller v. City of West

Columbia, 322 S.C. 224, 471 S.E.2d 683 (1996).

Actual malice is a subjective standard testing the publisher's good faith

belief in the truth of his or her statements. Peeler v. Spartan Radiocasting,

Inc., 324 S.C. 261, 478 S.E.2d 282 (1996). The constitutional actual malice

standard requires a public official to prove by clear and convincing evidence

that the defamatory falsehood was made with the knowledge of its falsity or

with reckless disregard for its truth. New York Times Co. v. Sullivan, supra;

Botchie v. O'Dowd, 315 S.C. 126, 432 S.E.2d 458 (1993). A "reckless disregard"

for the truth, however, requires more than a departure from reasonably prudent

conduct. "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 (1968)(emphasis

supplied). There must be evidence the defendant had a "high degree of

awareness of ... probable falsity." Garrison v. Louisiana, 379 U.S. 64, 74

(1964) (emphasis supplied).

Failure to investigate before publishing, even when a reasonably prudent

person would have done so, is not sufficient to establish reckless disregard. See

St. Amant, supra; Hunt v. Liberty Lobby, 720 F.2d 631, 642 (11th Cir. 1983);

Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (6th Cir. 1982). Actual malice may

be present, however, where one fails to investigate and there are obvious

reasons to doubt the veracity of the informant. St. Amant, supra.

p.275

The actual malice standard is not satisfied merely through a showing of

ill will or `malice' in the ordinary sense of the term. Harte-Hanks, 491 U.S. at

666. It is insufficient to show the defendant made an editorial choice or simply

failed to investigate or verify information; there must be evidence at least that

the defendant purposefully avoided the truth. Gaylord Broadcasting v. Francis,

7 S.W.3d 279 (Tex. 1999); ABC, Inc. v. Gill, 6 S.W.3d 19 (Tex. 1999). Erasure

of a tape recording when done as part of a routine practice is not evidence of

actual malice. Peeler v. Spartan Radiocasting, 324 S.C. 261, 478 S.E.2d 282

(1996). Although evidence concerning motive or care may bear some relation

to the actual malice inquiry; however, "courts must be careful not to place too

much reliance on such factors." Harte-Hanks, 491 U.S. at 668.

The evidence relied upon in this case to demonstrate actual malice is as

follows: 1) that Sossamon failed to investigate or verify the information left by

the anonymous caller; 2) that the phone recording of the anonymous caller was

"erased" by Newspaper; 3) that Sossamon pled guilty to manufacturing

marijuana in 1991; and 4) that Sossamon had been "rude" to Chief Elder's wife

on one occasion when she was at the Newspaper to place an ad for her husband.

This evidence is patently insufficient to demonstrate Sossamon in fact

entertained serious doubts as to the truth of the publication. 4

As to the first item, the failure to investigate, while there was expert

testimony that reporters verify the accuracy of news articles, and Sossamon

testified he did not have sufficient evidence to develop a news story that Elder

was being bribed, there was no testimony that the same verification procedures

apply to editorials or opinion columns. In fact, the experts called by Elder did

not write editorials. The only testimony with respect to columns such as

"What's Your Beef?" came from Sossamon who testified that, although some

newspapers have a policy against publishing anonymous items, he knew of a

number which do, in fact, publish such items. Moreover, as noted previously,

a mere failure to investigate is not tantamount to actual malice. St. Amant,

supra. The fact that Sossamon did not investigate the anonymous phone call

a witness who could corroborate the truth of the statement in its answers to

interrogatories constitutes evidence of constitutional actual malice. We fail to

see how a party's failure to list a witness in answers to interrogatories

demonstrates actual malice in the publication of the article. Moreover,

Sossamon was listed as a witness in Newspapers' answers to interrogatories;

he was simply not listed in response to interrogatory number 6.

p.276

simply does not demonstrate that he "purposefully avoided" the truth. 5

The Court of Appeals also suggested that the failure of Newspaper to

introduce the tape of the phone call was evidence of the possibility that Editor

manufactured the entire piece. Contrary to the Court of Appeals' insinuation,

there was simply no evidence that Sossamon fabricated the phone call, or that

the tape was non-existent. 6 In relying upon the absence of the tape to

establish evidence of Sossamon's possible motive, the Court of Appeals

effectually switched the burden to Newspaper to introduce the recording. This

was error. See Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977) (burden

to prove his case is always on plaintiff). Given that counsel for Elder was in

possession of a copy of the tape, and its authenticity was not an issue at trial,

we find the Court of Appeals erred in relying upon its absence to demonstrate

an inference of malice. 7

The Court of Appeals also cited the fact that Sossamon had a 1991

conviction for manufacturing marijuana, concluding that he may have been

motivated by his own problems with law enforcement to discredit Elder. In our

view, the Court of Appeals placed undue emphasis on this conviction. There

was no evidence Elder had anything whatsoever to do with Sossamon's arrest;

on the contrary, it appears from the record that Sossamon was arrested by a

Detective Burgess. Moreover, Sossamon repeatedly testified that he owed his

life to the fact that he was arrested, and in fact had called and thanked the

Sheriff who had arrested him. In sum, there was simply no testimony linking

he did not have sufficient information to develop a news story. 511 S.E.2d at

388. This is simply another way of stating he failed to investigate. The fact

that he did not have enough information to transform an editorial/opinion

column into a news story simply does not demonstrate he had substantial doubt

as to its truth.

6 The message was left on what Sossamon described as a "computer

recording." When Sossamon went to retrieve it for Elder the day following the

publication, he was told it had been "killed" off the computer (or recorded over).

Newspaper was subsequently able to retrieve the original message from a

mirror recording, a copy of which was given to counsel for Elder prior to trial.

7 Moreover, this Court has recognized that erasure of a tape recording is

not evidence of actual malice. Peeler, supra.

p.277

Sossamon's 1991 arrest to any ill motive toward Chief Elder such that its

relevance in this case is questionable.

With regard to Mrs. Elder's testimony that Sossamon was "rude" to her,

although we agree with the Court of Appeals that evidence of ill will may, in

some circumstances, be relevant to demonstrate motive, we fail to see the

relevance of Mrs. Elder's testimony in this case. The mere fact that Sossamon

spoke to her in a "very smart, rude" manner on one occasion more than a year

prior to the publication of the column is simply irrelevant to demonstrate malice

by Sossamon toward Elder. It is possible Sossamon is generally a rude person,

or was in a bad mood on the day in question, or perhaps has a dislike of Mrs.

Elder. Accordingly, we find Mrs. Elder's testimony irrelevant.

Moreover, even if Sossamon's conviction and his "rudeness" toward Mrs.

Elder are somehow relevant to a determination of "ill will" toward Chief Elder,

they are insufficient to demonstrate the requisite constitutional actual malice

in publishing the item. As noted by the United States Supreme Court, the

actual malice standard is not satisfied merely through a showing of ill will or

"malice" in the ordinary sense of the term. Harte-Hanks, supra, 491 U.S. at

666, 109 S.Ct. at 2685, n. 7 (phrase "actual malice" is unfortunately confusing

in that it has nothing to do with bad motive or ill will). See also Chapin v.

Knight-Ridder, 993 F.2d 1087,1092, n. 5 (4th Cir.1993)("actual malice" does not

refer to "ill will"); Sanders v. Prince, 304 S.C. 236, 403 S.E.2d 640 (1991)(jury

may not impose liability on basis of defendant's hatred, spite, ill will, or desire

to injure as "[i]ll will toward the plaintiff, or bad motives, are not elements of

the New York Times standard"); Beckley Newspapers Corp. v. Hanks,, 389 U.S.

81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967). Although it cannot be said that

evidence concerning motive or care never bears any relation to the actual malice

inquiry, courts should be careful not to place too much reliance on such factors.

Harte-Hanks, supra. "Bad motive or hostility is not what is meant by malice

in the New York Times sense." Pacella v. Milford Radio Corp., 462 N.E.2d 355,

361 (Mass. 1984). Since evidence of ill will is not part of the actual-malice test,

its admission could cause unnecessary jury confusion and arguably restrict the

speech rights of adversaries without commensurate proof that the defendant

knew or suspected a falsehood. See Pendleton v. City of Haverhill, 156 F.3d 57,

65 (1st Cir. 1998) (affirming exclusion of evidence of libel defendant's animus

toward plaintiff on the ground that "[i]n the defamation context, 'malice' does

not relate to the defendant's motive for speaking or even to whether the

defendant made the challenged statement out of ill will"). Even where such

evidence is admitted (as, for example, to show that the defendant had a motive

p.278

to lie about the plaintiff), it has been observed that it does not approach a

showing of the mordant unconcern with the truth of a particular statement

which is crucial to the claim of defamation by a public figure. Nat'l Ass'n of

Gov't Employ Inc. v. Central Broadcasting Corp, 396 N.E.2d 996, 1003

(Mass. 1979).

Under the facts of this case,'even if we assume Sossamon's conviction and

alleged "rudeness" tend to demonstrate that he in fact held some ill will toward

Chief Elder, those factors far fall short of the requisite clear and convincing

standard of demonstrating he deliberately published "What's Your Beef?" with

a "high degree of awareness of . . . probable falsity." Garrison v. Louisiana,

supra.

Finally, Sossamon testified that he believed the information contained in

"What's Your Beef?" could be true because Chief Elder knew some people in

Blacksburg who had been selling drugs for many years and had not done

anything about it, 8 and because Elder had at one time called Sossamon to

advise him that a Newspaper employee had been hanging out with a known

drug dealer. Sossamon took the fact that Chief Elder had "tipped him off" as an

indication that he "could have tipped anyone off." Given this is the only

testimony regarding Sossamon's subjective belief concerning the publication, we

simply cannot say he "purposefully avoided the truth" in printing the column.

CONCLUSION

Essentially, the evidence of actual malice in this case boils down to

Sossamon's failure to investigate an anonymous phone call prior to publishing

it in a clearly designated editorial/opinion column, 9 and some speculative

testimony that Sossamon could possibly have harbored some ill will toward

9 The fact that the item was published in "What's Your Beef?" militates

against a finding of actual malice. The column was clearly labeled as an

editorial/opinion column, and plainly advised readers they could call the

newspaper and "get it off your chest" without leaving their name. The "form

and content of the story are relevant not only to the falsity and neutral

reportage questions, but also to the question of actual malice." Harte-Hanks,

supra, 491 U.S. at 695, 109 S.Ct. at 2699 (Blackmun, J., concurring).

p.279

Chief Elder. This is patently insufficient to establish clear and convincing

evidence of constitutional actual malice. Accord Journal Publishing Co. v.

McCullough, 743 So.2d 352 (Miss. 1999) (evidence the defendant newspaper

was opposed to plaintiff politically, had published unfavorable stories about him

in the past, had been tipped off by the plaintiff's political enemy, newspaper

reporter knew article would damage plaintiff's reputation, reporter did not

verify information through at least two sources despite his knowledge it was

good journalistic practice to do so, and there was evidence reporter had lied

about trying to contact plaintiff's office before printing his story was insufficient

to satisfy actual malice standard as it amounted to no more than evidence of ill

will). Accordingly, we hold Elder failed to meet his burden of proof, and the

Court of Appeals' opinion is therefore

REVERSED.

FINNEY, C.J., MOORE, and TOAL, JJ., concur. BURNETT, J., dissenting in a

separate opinion.

p.280

JUSTICE BURNETT (dissenting): I respectfully dissent. In

my opinion, Chief Elder presented clear and convincing evidence of

Sossamon's actual malice in publishing the anonymous commentary in The

Gaffney Ledger.

The constitutional standard for proving actual malice is well

established. In N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964), the

United States Supreme Court held "[t]he 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." " '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. . .". St. Amant v. Thompson, 390 U.S. 727, 730-731 (1968).

". . . [R] eckless conduct is not measured by whether a reasonably

prudent man would have published, or would have investigated before

publishing." Id. at 731; see also Peeler v. Spartan Radiocasting Inc., 324

S.C. 261, 266, 478 S.E.2d 282, 284 (1996) ("[t]o establish recklessness, there

must be an extreme departure from the standards of investigation and

reporting ordinarily adhered to by responsible publishers."). Nevertheless,

"[t]he 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 . . . based wholly on an unverified anonymous telephone call. .

.". St. Amant, 390 U.S. at 732 (italic added). 1d When reporting the

allegations of a third party, "recklessness may be found where there are

obvious reasons to doubt the veracity of the informant or the accuracy of his

reports:" Id.

Holtzscheiter v. Thomson News Inc., 332 S.C. 502, 506 S.E.2d 497 (1998)

(Toal, J., concurring).

p.281

On appeal, this Court has "a constitutional duty to 'exercise

independent judgment and determine whether the record establishes actual

malice with convincing clarity'." Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657, 659 (1989), citing Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 514 (1984); see also Peeler v.

Spartan Radiocasting, Inc., 324 S.C. 261, 478 S.E.2d 282 (1996) (de novo

review is conducted to determine if there is clear and convincing evidence on

issue of actual malice). "Clear and convincing evidence is that degree of

proof which will produce in the mind of the trier of facts a firm belief as to

the allegations sought to be established. . .; it does not mean clear and

unequivocal." Id. S.C. at 265, S.E.2d at 286, citing Middleton v. Johnston,

273 S.E.2d 800, 803 (Va. 1981).

In my opinion, de novo review of the record demonstrates clear

and convincing evidence of actual malice. Sossamon's claim he believed the

anonymous recording was true because Chief Elder had previously notified

him a newspaper employee was "hanging out" with a drug dealer who was

going to be arrested does not support the recording's assertion Chief Elder

was taking bribes from drug dealers. In fact, it suggests the contrary: that

Chief Elder was actively arresting drug dealers. In that the United States

Supreme Court has recognized the danger inherent in relying on anonymous

sources, St. Amant, 390 U.S. 727, Sossamon's failure to take any steps to

corroborate the accuracy of the recording suggests a purposeful avoidance of

the truth tantamount to reckless disregard for the truth. Harte-Hanks, 491

U.S. at 692 (" [a]lthough failure to investigate will not alone support a finding

of actual malice, purposeful avoidance of the truth is in a different

category.") (internal citations omitted).

Moreover, Sossamon's attitude towards Chief Elder's wife prior

to the publication of the recording indicates a degree of apparent hostility

towards Chief Elder. Further, notwithstanding his claims to the contrary,

Sossamon's own arrest and conviction for manufacturing marijuana are

evidence of his motive for publishing the recording without regard to

whether its assertions were true. Id. at 668 (italic added) ("[a]lthough courts

must be careful not to place too much reliance on such factors, a plaintiff is

entitled to prove the defendant's state of mind through circumstantial

evidence, and it cannot be said that evidence concerning motive or care never

bears any relation to the actual malice inquiry.") (internal citations omitted).

p.282

The First Amendment prevents the threat of litigation from

inhibiting the freedom of the press. Nonetheless, its protection is not

without limit. Where, as here, a newspaper heedlessly and falsely accuses a

public official of a crime solely on an unsubstantiated anonymous recording,

constitutional protections cease. Accordingly, I would affirm, in result, the

decision of the Court of Appeals. 2d

protection. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1996) (the First

Amendment does not shield an assertion simply because it is characterized

as an opinion). The phrase "[n]ow I often wonder if the drug dealers are

paying the Chief of Blacksburg" is clearly an assertion of an objective fact

and is actionable.

p.283