Judgment reversed, Supreme Court of the United States, May 18, 1970.
BARNES, J., delivered the opinion of the Court.
This appeal involves a judgment, entered upon the verdict of a jury by the Circuit Court for Prince George's County (Mathias, J.) for $17,500 damages ($5,000 compensatory and $12,500 punitive) in favor of Charles S. Bresler, appellee and plaintiff below, for libel, against the appellants and defendants below, Greenbelt Cooperative Publishing Association, Inc. (Publishing Association) publisher of the Greenbelt News Review (News Review), and its president, Alfred M. Skolnik.
Inasmuch as the jury returned a verdict in favor of the plaintiff, Bresler, we must review the facts in the light most favorable to him, where those facts are in dispute or where more than one inference may be drawn from them. Campfield v. Crowther, 252 Md. 88, 249 A.2d 168 (1969); Cassell v. Pfaifer, 243 Md. 447, 453, 221 A.2d 668, 671 (1966). Accordingly, we note that there was sufficient evidence in the record from which the jury could have found the following facts: The News Review is the only newspaper published in the City of Greenbelt. Its circulation consists of approximately 4,500 copies each week, of which only about 75 are paid subscriptions which are mailed; the remaining copies are delivered without charge to every house in Greenbelt. Mr. Skolnik is not only president of the Publishing Association, but also writes many of its feature articles and editorials. He is also one of the five members of the editorial board which reviews and edits all of the material published. His wife, Elaine Skolnik, writes many of the feature articles as well as a weekly column and is one of several housewives who serve
The News Review published a number of articles and editorials concerning Mr. Bresler which are alleged to be false, malicious and libelous. The two principal articles which used the word "blackmail" with reference to Mr. Bresler related to the proposed zoning of two tracts of land (Parcels 1 and 2) in which he owned a 16 1/3 per cent interest. Bresler and his associates had requested, and the Maryland National Capital Park and Planning Commission (MNCPPC) Master Plan had recommended R-30 (Townhouse) zoning for both tracts, but this zoning was vigorously opposed by Greenbelt Homes, Inc., the large mutual housing cooperative in Greenbelt, (GHI) and a group known as "Citizens for A Planned Greenbelt" (CFPG). CFPG had approximately 650 Greenbelt residents as members, and had no requirement for membership other than the payment of $1.00. Mrs. Skolnik is one of the twenty members of the Steering Committee of CFPG, which operates as its executive body. Both Mr. Skolnik and his wife, Elaine, attended meetings of the Steering Committee.
The Skolniks are also members of GHI by reason of having purchased the perpetual use of one of the original Greenbelt row houses. GHI at one time owned all of the land now owned by Bresler and his associates, but sold it at a profit instead of developing it. GHI owns the wooden row houses which sell for between $5,000 and $10,000 and which are located in front of Parcels 1 and 2. It opposed the R-30 zoning for Parcels 1 and 2, even though it was building townhouses on its own property. It advertises regularly in the News Review. Charles Schwan is president of GHI and is a friend of the Skolniks. He serves with Mrs. Skolnik on the CFPG Steering Committee and is chairman of the CFPG Membership Committee.
The evidence at the trial, which began on January 3, 1968, indicated that in 1961 and 1962 the relations between Bresler and the City Council of Greenbelt were cordial. A rather glowing article appeared in The Washington Post of October 6, 1962, by John B. Willmann, its Real Estate Editor, under the headline "Vast Private Developments Planned In 25-Year-Old Greenbelt
In 1964, however, the relations apparently had become somewhat strained inasmuch as in the News Review of May 7, 1964, in an article written by Mr. Skolnik reporting what had happened at the meeting of the City Council of Greenbelt on May 5, it was stated that Councilman Simonson "also observed that much debris had been left along the shoreline, including a spreading patch of tar-oil, as the result of the construction of Lakeside Extended by the developer Charles Bresler." Further discussion was then reported and the article continued:
On June 2, 1964, Mr. and Mrs. Bresler and the Suburban Trust Company, mortgagee, executed and recorded among the land records of Prince George's County, a release of covenants previously entered into with the City of Greenbelt in 1962. These covenants allegedly placed on the 50 acre Charlestowne Village Terrace a limitation of the density to 7 units an acre.
By April 22, 1965, as reported in the News Review of that date, an active campaign was in progress for membership in CFPG, the principal goal of which was "'to preserve the fundamental character of Greenbelt as a low-density, planned residential community.'" In an article by Mr. Skolnik in the same issue bearing the headline "CITY BATTLES BRESLER ON 2 FRONTS; SETS SPRING CLEAN-UP FOR MAY 3-17", it was stated that: "Another confrontation is looming between the city council and the local developer, Charles Bresler and associates." The article recites that a subdivision plat for section 2 of Charlestowne Village was filed with MNCPPC calling for 260 units "in excess of the number agreed upon in the covenant entered into between the city and Bresler at the time the land was rezoned." The article further stated the MNCPPC had approved the subdivision plat as it only looked to the zoning of the land and "does not take into consideration private agreements between municipalities and developers." It was further stated that the "city and Bresler will also be at odds this week when the suit filed by the city against Ivy Homes, Inc. and Boxwood Village, Inc. comes before the circuit court," involving an alleged excess of rain water resulting from the rough
We now come to the two articles in the News Review which form the principal basis for the libel action.
In the News Review of October 14, 1965, the first article containing the following relevant portions appeared:
In the same issue of October 14, a letter to the editor from Miriam and Howard Laster was published. This letter to the editor was entitled, "An Unethical Trade" and stated, in relevant part, the following:
The second article appeared in the News Review of October 21, 1965, and contained, in relevant part, the following:
Also in the October 21 issue, an editorial appeared entitled, "THE LIMITS OF COMPROMISE" in which it was stated:
In the January 20, 1966 issue of the News Review, a letter to the editor from Clifford Simonson, entitled, "ANOTHER CRIPPLING BLOW" was published. It stated in relevant part:
After stating why the new school location was undesirable, Mr. Simonson continued:
In the issue of April 7, 1966, the News Review published an article by Mrs. Skolnik under the headline: "BRESLER REPUDIATES COVENANT SIGNED WITH CITY IN 1962", in which it was indicated that news of the Release of Covenants filed for record on June 2, 1964 "came as a complete surprise to city officials since Bresler had not at any time during the past 22 months notified the city that he had unilaterally abolished the covenant agreement." and that "The city is now looking into the legality of the `Release of Covenants' filed by Bresler since it was not a party to the document."
A letter to the editor from Mrs. E.S. Ross was published in the News Review of May 19, 1966, which was as follows:
The News Review, in its issue of June 9, 1966, under the
It should be observed that until the letter to the editor in the News Review issue of May 19, 1966, and in the issue of June 9, 1966, there had been no mention of any kind in any News Review issue offered in evidence which referred to Mr. Bresler as holding or seeking any public office of any kind or of his fitness or lack of fitness for such an office, although Mr. Bresler was a member of the Maryland House of Delegates from Montgomery County (and not from Prince George's County where the City of Greenbelt is located), and there was no reference to any act of Assembly or other political activity by Mr. Bresler which might possibly affect the City of Greenbelt, its inhabitants or Prince George's County generally. All of the references were to Mr. Bresler as a land owner and developer.
Finally, on June 30, 1966, the News Review published an article under the headline "GHI FILES SUIT AGAINST SCHOOL BOARD; BRESLER INFLUENCE CITED" which stated in relevant part:
The present action for damages for libel was filed on July 18, 1966, and an amended declaration was filed on November 7, 1966. The plaintiff, Mr. Bresler, claimed in the ad damnum clause, $1,000,000 compensatory damages and $1,000,000 exemplary or punitive damages. He alleged that in the publications mentioned in the amended declaration, the defendants, Publishing Association and Mr. Skolnik —
The plaintiff did not elect a jury trial.
The defendants, in addition to the general issue plea that they did not commit the wrongs alleged, filed six other "defenses" challenging the sufficiency of the declaration to state a cause of action, and alleging that the publications were constitutionally protected under the First Amendment to the Federal Constitution and under Article 43  of the Declaration of Rights of the Maryland Constitution; that the words were fair comment and were published without actual malice, and are privileged; and, that the words were published in good faith, without malice and with reasonable and probable cause. There was, however, no plea in justification of the truth of the alleged libelous words. The defendants elected a jury trial.
At the trial of the case, which began on January 3, 1968, before Judge Mathias and a jury, the plaintiff called the defendant, Mr. Skolnik, as an adverse witness. After testifying to many of the facts already given concerning the operations of News Review, his education and position and duties with the News Review, as well as his and Mrs. Skolnik's connections with CFPG and GHI, Mr. Skolnik was interrogated in regard to the article in the News Review issue of October 14, 1965, in
Albert Herling, mentioned in the article in the News Review issue of October 21, 1965, as having "suggested" that the city council "fight Bresler's blackmail" was identified by Mr. Skolnik as both a member of GHI and of the Steering Committee of CFPG at the time the article was published. Albert Herling was mentioned in the October 21 article as having used the word "skulduggery". Mr. Skolnik testified that this "is the word that the reporter used to interpret what Mr. Herling was saying" and that the word skulduggery "means something amiss, something improper perhaps."
Mr. Skolnik admitted in his testimony that he had written parts of the editorial in the News Review issue of October 21 in which it was stated that some developers "do not seem to
Mr. Skolnik was referred to the News Review issue of June 9, 1966, which attributed to The Evening Star a report that Mr. Bresler intended to announce his candidacy for Maryland State Comptroller, and which related at length legal proceedings in which Mr. Bresler was involved, including a suit by the city in regard to drainage problems in Boxwood Village. Mr. Skolnik admitted that this suit was against two corporations, one of which Bresler had no interest in, and not against Bresler personally, and that the News Review failed to report that the case was dismissed as to Boxwood Village and later settled with the other corporation in which Bresler had no interest. The article further stated:
Mr. Skolnik stated that this article had been written jointly by him and his wife, but that Mrs. Skolnik had written the above paragraph. He further stated that his wife had attended a CFPG meeting at which approximately 15 to 20 homeowners from Boxwood Village desired to air their complaints, but the chairman of the meeting said that they would not discuss the complaints, so that Mrs. Skolnik talked to them after the meeting adjourned. When asked what suits had been filed, Mr. Skolnik testified: "No, I don't know anything about suits. All I know is that people were complaining about the fact that they were having troubles." He stated that he thought "[L]egal proceedings include complaints."
Mr. Skolnik was questioned about an article in the June 16, 1966 issue of the News Review entitled, "CFPG DRIVE LAUNCHED" in which the "collection of funds earmarked specifically for legal fees" by the Steering Committee of CFPG was publicized. In the article it was stated that "Citizens suits are now being prepared in connection with an eight-story high rise apartment on Charlestowne-Village acreage and other actions
When interrogated in regard to whether or not Mrs. Skolnik assisted in any way in the collection of those legal funds, Mr. Skolnik answered, "I don't recall any activity in that respect", and affirmatively stated, "I don't think she had anything or much to do with the drive for legal fees", but when shown the last paragraph of an article in the News Review which solicited assistance and listed three telephone numbers to call, he stated that the last number was his wife's telephone number and that he and Mrs. Skolnik did not have separate telephones.
Mr. Skolnik stated that this suit arose out of a suggestion by Mayor Smith that the City's suit for an injunction against the violation of the covenants be supplemented by private suits, in the event that it was determined that the City had no standing to maintain its suit. Mayor Smith was a member of the Steering Committee of CFPG at that time, and was chairman of its Official Liaison Committee. Mr. Skolnik also testified that the contemplated suit was to be a suit in equity for an injunction and for no other purpose. When asked about an article in the July 7, 1966 issue of the News Review, entitled "CFPG DRIVE UNDERWAY", which stated that the legal funds were "to support legal action to maintain the garden-city character of Greenbelt and to help realize the City's Master Plan", Mr. Skolnik stated that one of the two telephone numbers given for those willing to assist to call, was the telephone number of Mrs. Skolnik.
In neither the News Review article in the June 16, 1966 issue, nor in the article in the issue of July 7, 1966 was there any mention of the fact that the suits were against any one except Mr. Bresler or for any purpose other than the stated purpose, i.e., to supplement the injunction suit of the City. Mr. Skolnik on further examination, however, admitted that the suit which was instituted was one at law in which each plaintiff, including Mrs. Rosetti, claimed $175,000 compensatory and punitive damages, together with an injunction pursuant to Maryland Rule BF 40 a.
Mr. Skolnik was asked: "Q. Have you ever instructed any of the members of your staff to call Mr. Bresler to verify any article which concerned him? A. No, we have no general — what we have is a general rule, that if you don't know the facts, if there is confusion about the facts, you call the principals involved." When asked if on any occasion there had been doubts to the facts where he had felt that is was necessary that he or the reporters communicate with Mr. Bresler, Mr. Skolnik was able to recall two instances, one "a few months ago" in regard to a report that Bresler was removing the trees on land owned by him directly across from a new project he had built and the other in regard to a newspaper report in the Washington press that a high-rise apartment project was to be built on Parcel 15. Mr. Bresler gave them the correct facts on these two occasions.
Mr. Bresler, himself, was the next and final witness for the plaintiff. In response to questions as to whether he owned "the bulk of the undeveloped land in Greenbelt," he testified that he had an interest varying from 16 1/3 to 25 per cent in several parcels of land in Greenbelt, which totaled 430 acres, whereas, other developers owned approximately 2000 acres. Zoning petitions had been filed for approximately 600 acres of land, he having an interest in such petitions for about 230 or 340 acres. Mr. Bresler further testified that no suit had been filed against him for any alleged failure to make construction corrections as required by the County holding standards.
He also stated that "the only personal suit I have had in Greenbelt is the one the City filed against me at the instigation
Mr. Bresler further testified that he had tried but could not obtain a subscription to the News Review. He tried to buy the paper but could not find any place to purchase the News Review. His office had telephoned for a mail subscription and "was told they didn't mail them out." He was surprised to hear Mr. Skolnik's testimony that the News Review has "50 to 75 people who receive mail subscriptions." When derogatory articles appear in the News Review, however, some person who receives the paper will mail one "to the Breslers. My wife opens it and one of my six kids will get up then and want to know what it is all about * * *. And the local residents call referring to the Bresler news because invariably two or three articles are on the front page mentioning me by name and allude to my name — as one of them said, if it wasn't for me there wouldn't be any paper."
On cross-examination, Mr. Bresler testified that he had signed the covenants in regard to building townhouses averaging 7 units an acre for 50 acres because "this was what they were going to do with everybody, that they were going to get the same covenants from everybody."
At the end of the plaintiff's case, the defendants made a
The first witness for the defendants was the mayor of Greenbelt, Edgar L. Smith. He testified that he was in his third term as mayor, having been prior to his election as mayor, a member of the City Council of Greenbelt (from 1959-61). He had been city attorney for the municipality for about six months. He stated that he had been present at the meetings of the City Council on October 11 and October 18, 1965, and that the articles in the issues of October 14 and October 21 represented "fair and accurate" reports of the respective meetings.
On cross-examination, Mayor Smith stated that the date on which the City of Greenbelt first learned that Bresler intended to build a high-rise apartment was January 17, 1966, but the City Manager's Report for the week ending October 22, 1965, (a copy of which Mayor Smith assumed he received, as he normally does) indicated that Bresler was to construct a "High Rise 183 units", that the units "To be constructed" were in excess of the covenants and that "Mr. Brooks [city attorney] has been requested to prepare to take action to enforce the covenants." He testified that he did not think that either he or the City Council ever voted against any of CFPG's recommendations, and that he did not take issue with an article in the News Review which said that he went to meetings of the County Commissioners as a delegate from CFPG, and stated that he "didn't tell them I was Mayor, because I was there in a dual capacity. As Mayor, as delegate from CFPG." He also testified in regard to several committees set up by the Steering Committee of CFPG and that he was Chairman of the Official Liaison Committee as well as a member of the Steering Committee. Charles Schwan was Chairman of the Membership Committee and Albert Herling
Mary Louise Miller Williamson testified for the defendants that she had written the article in the issue of the News Review of October 21, 1965, which referred to Mr. Herling's alleged allegation of "blackmail" and "skulduggery." On cross-examination, she stated, "I paraphrased his sentence but I selected out the word `blackmail' was his word and I wanted to denote it was his word I was picking up * * *." As to the word "skulduggery" attributed to Mr. Herling, she stated:
She further stated that the $5 contribution she made to the legal fund of CFPG was to be used to "preserve the Master Plan of Greenbelt." She was not told, however, that this fund would be used to sue Mr. Bresler for damages in excess of a million dollars. She assumed that Mrs. Skolnik was soliciting for these funds, inasmuch as she was on the Steering Committee. When asked whether there was "anything in the discussion * * * which justified the use of the word `blackmail'", Mrs. Williamson replied: "There is no connection as far as I can see between what Mr. Bresler, what the situation — the offer, there is no relation between that and a crime of blackmail. There is a difference."
Dorothy Sucher testified on behalf of the defendants that she had written the article in the issue of the News Review of October
The last witness for the defendants was Elaine Skolnik, who testified that she had attended the meeting at which Mrs. Bergemann had used the word "blackmail". She stated that Mrs. Bergemann was a friend of hers as was Charles Schwan. She further stated that she had three and one-half years of college education. She testified that to her, the words "started legal proceedings" meant "they went to a lawyer." She stated that she had not urged any litigation against Mr. Bresler; she is a member of the Steering Committee of CFPG and voted "to endorse the citizens, which was a suit to enjoin the building of the high rise apartment and to enforce the covenants." She stated that she did not solicit for the legal fund of CFPG and that her telephone number was "probably in the papers to — as far as volunteers * * * to go out and solicit." The legal funds were to be used to "* * * see that Greenbelt was developed according to the Greenbelt Master Plan." In regard to "blackmail" she testified:
The defendants again moved for a directed verdict at the conclusion of all the testimony and the trial court overruled this motion. The trial court pointed out that there was no plea of justification that the allegations of blackmail were true. Counsel for the defendants stated:
The trial judge gave a comprehensive charge to the jury to which the defendants filed two exceptions. The charge and exceptions will be particularly mentioned when we consider the alleged errors in the charge.
In his opening statement to the jury, counsel for Mr. Bresler stated, in part, the following:
The appellants make four contentions before us:
1. The publications are constitutionally protected because (a) they relate to Bresler's qualifications as a public official, and (b) to his activities of public interest as a public figure.
2. The two reports of the meetings of the City Council at which the term "blackmail" was used are particularly entitled to constitutional protection because they are fair and accurate reports of what was said during official public meetings.
3. There was insufficient evidence as a matter of law to establish that the defendants and appellants published a false and defamatory statement about the plaintiff and appellee Bresler with knowledge that it was false or with reckless disregard of whether or not it was false.
4. The trial court erred in its instructions in four particulars.
Before considering specifically the four contentions of the appellants, several general observations should be made.
First of all, it seems apparent that but for the federal constitutional protections which the appellants allege are applicable and on which they principally rely, the facts alleged and proved in the present case would, under the Maryland law relating to libel, present a case of libel for which damages, both compensatory and punitive, could be awarded by a jury to Mr. Bresler against the defendants and appellants. It is well settled in Maryland that words which falsely charge a person with, or impute to him, the commission of a crime for which he is liable to be prosecuted and punished are actionable per se. As Judge Horney, for the Court, aptly stated in American Stores Co. v. Byrd, 229 Md. 5, 12-13, 181 A.2d 333, 337-38 (1962):
American Stores was a far weaker case for the plaintiff on the facts in charging the commission of a crime than are the facts in the present case, but we held that the jury verdict for the plaintiff for $25,000 punitive damages was supported by the evidence.
In the instant case the word "blackmail" was used as a subheading without qualification. The charge of blackmail was stated in the News Review issue of October 14, 1965, and was again repeated in the next week in the issue of October 21. The appellants argue that the word "blackmail" was used in a noncriminal sense, but the intended meaning was for the jury to determine. American Stores v. Byrd, supra. The jury found against the appellants.
There is little doubt that a statement that a person is guilty of blackmail charges the commission of a crime for which a person may be prosecuted and punished. In Maryland extortion or blackmailing is recognized as a crime. See Code (1957) Article 27, Sections 561, 562 and 563,
The charging of Mr. Bresler with having committed blackmail could be found by the jury (as it was) to charge him with the commission of a crime.
See Las Vegas Sun, Inc. v. Franklin, 74 Nev. 282, 329 P.2d 867 (1958) (use of word "blackmail" in headline or tagline of newspaper libelous per se, but reversed on other grounds); Culver v. Marx, 157 Wis. 320, 147 N.W. 358 (1914) (charge of blackmailing slanderous per se); Hess v. Sparks, 44 Kan. 465, 24 P. 979, 21 Am. S.R. 30 (1890) (referring to defendant as a "blackmailer" slanderous per se). See also Mitchell v. Sharon, 51 F. 424 (N.D.Calif. 1892), aff'd 59 F. 980 (9th Cir.1894) (stating that charging a person with being a "blackmailer" is equivalent to charging such person with being guilty of the crime of "extortion" but holding that words were not slanderous per se because it imputed only an intent to commit blackmail, not the actual crime).
See generally 53 C.J.S. Libel and Slander, § 65, page 110 (1948), where it is stated:
It is well settled that under the Maryland Constitution and our prior decisions, there was sufficient evidence to support the jury's verdict in this case.
Article 40 of the Declaration of Rights of the Maryland Constitution provides:
Our predecessors, in Negley v. Farrow, 60 Md. 158 (1883), held that liberty of the press, "is a right belonging to every one whether a proprietor of a newspaper or not, to publish whatever he pleases without the license, interference or control of the government, being responsible alone for the abuse of the privilege." (60 Md. at 176) Negley involved an action against the publishers and owners of "The Herald and Torchlight", a newspaper published in Hagerstown, by the plaintiff, a republican Senator from Washington County, who claimed that an article in the paper charged him with collaborating with a corrupt democratic ring, with having voted for the ring's candidate after having participated in the republican caucus in nominating another person, with aiding the ring in defeating a bill for repeal of an Act authorizing the publishing of laws in newspapers, and charging him with thereby proving false to his political obligations and a traitor to his party and bringing dishonor upon the republicans of Washington County who had elected him to the Senate. The article further charged the Senator with having been given a contract to furnish stone to a canal by its president, the head and front for the democratic ring, because he was a Senator "and had a vote to give in the Senate." The jury rendered a verdict for the plaintiff for $3,000. In holding these charges to be libelous per se, Judge Robinson, for the Court, stated:
In addition to the publications that Mr. Bresler had committed blackmail, there were publications that he had engaged in "An unethical trade", had been guilty of "skulduggery", had had legal proceedings "started against him for failure to make construction corrections in accordance with county standards." These allegations were injurious to Mr. Bresler in his business as a contractor and were libelous per se. As Judge (later Chief Judge) Prescott, for the Court, stated in Thompson v. Upton, 218 Md. 433, 437, 146 A.2d 880, 883 (1958):
This rule has not only been applied to those who practice the professions, such as attorneys, clergymen, physicians and teachers, but also to those engaged in business. The rule was specifically applied to contractors in Plenol v. Beuttler, 253 Iowa 259, 111 N.W.2d 669 (1961); Schneidman Heating, Inc. v. New York Plumbers' Specialties Co., 238 App. Div. 318, 264 N.Y.S. 146 (1933); Williams v. Daily Review, Inc., 236 Cal.App.2d 405, 46 Cal.Rptr. 135 (1965); see generally 53 C.J.S. Libel and Slander, § 37 at 85 (1948).
In regard to the defense of fair comment, Judge (now Chief Judge) Hammond, after a review of the authorities, stated, for the Court, in A.S. Abell Co. v. Kirby, supra:
There would seem to be little doubt that under the Maryland law, apart from the federal constitutional protections which the appellants allege apply, the jury's verdict and subsequent judgment thereon would be held to be supported by the evidence and affirmed.
Secondly, we should observe preliminarily that we have grave doubts that Mr. Bresler was a "public official" or even "a public figure" within the purview of the holdings of the Supreme Court of the United States in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and subsequent cases following and applying it, and in Curtis Publishing Co. v. Butts and its companion case, Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Mr. Bresler was not a "public official" of Prince George's County, but was a member of the Maryland House of Delegates from Montgomery County. There is no suggestion that any of his activities as a member of the House of Delegates from another County had had any particular effect upon Prince George's County or upon Greenbelt and its citizens and property owners. Substantially all of the libels were published some seven months before he was asked by Governor (now Vice President) Agnew to run for Comptroller of Maryland. Indeed until the issue of the News Review of May 19, 1966, there was no mention in any of the relevant articles, letters or editorials published by the News Review of the fact that Mr. Bresler was a member of the House of Delegates or held any public office. The articles were directed at Bresler as a private developer of land in the Greenbelt area. There is no suggestion that he had
The appellants contend that the publications involved in this case are entitled to federal constitutional protection under the decisions of the Supreme Court of the United States in New York Times v. Sullivan, supra; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); and St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), in regard to "public officials" and the decision of that Court in the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, supra, in regard to a "public official" and a "public figure" within the meaning of those cases on the theory that the publications relate to Bresler's qualifications to hold office and concern his activities of public interest as a public figure. We have already indicated our doubt that the publications come within the ambit of the cases mentioned, and we need not repeat our reasons for this doubt. As we pointed out, however, because of the posture of the case and in light of the instructions of the trial court to the jury, it is not necessary for us to resolve this doubt as we may assume, arguendo, that Bresler was a public official and a public figure within the meaning of the federal cases mentioned, and also that the publications had relevance to Bresler's activities as a member of the Maryland
The second point raised by the appellants is that the two reports of the City Council meetings held on October 11 and 18, 1965, are particularly entitled to full constitutional protection because they are fair and accurate reports of what was said during public meetings. The appellants state in their brief, however, that recovery "based on accurate reports of official public meetings should be permitted, if at all, only under the most extraordinary circumstances where the evidence clearly establishes that a false factual charge of a highly damaging nature was published with knowledge of its falsity or with serious doubt as to its truthfulness." What the appellants apparently overlook is that there was credible evidence from which the jury could (as it obviously did) find that the present case was indeed a "most extraordinary" one in which the publishers of the false statement knew it was false and that nothing at the public meeting justified the charge that Bresler had committed blackmail. As we have indicated, Mr. Skolnik and several witnesses for the appellants connected with the publication testified that they knew that "blackmail" indicated criminal conduct and further that nothing occurred at either of the October 1965 meetings of the City Council which justified such a charge of criminal conduct by him. Counsel for the appellants also stated at the trial that they did not contend that Bresler committed blackmail.
It is doubtful that there is any privilege of reporting, as items of news, the proceedings at a public meeting of a City Council, as contrasted with the publishing of an official report of the City Council itself. See Buckstaff v. Hicks, 94 Wis. 34, 68 N.W. 403, 59 Am. St. R. 853 (1896). In Buckstaff, a councilman of the City of Oshkosh, Wisconsin stated at a council meeting that the plaintiff, State Senator Buckstaff (from the Oshkosh district), who was opposing a charter amendment for Oshkosh, was "four-fifths of his time in a state of intoxication." The Oshkosh Northwestern published this statement. The Supreme Court of Wisconsin affirmed a judgment for Senator
Even if the qualified privilege did ordinarily apply, however, it will not protect the publisher against liability in damages for the publication of irrelevant defamatory matter and for the repetition of false statements not otherwise privileged. Negley v. Farrow, supra. See Pulvermann v. A.S. Abell Co., 228 F.2d 797, 802 (4th Cir.1956), in which the Court, in summarizing the Maryland law, stated: "The rule in Maryland is that repetition of false statements is not privileged." See also Prosser, The Law of Torts, § 108 at 787 (3rd Ed. 1964).
Nor was it likely that Bresler, himself, would have access to the News Review to present his position in the matter and show that he had not committed blackmail, was not guilty of skulduggery or had not been sued for failure to carry out the county building requirements, in view of the refusal of the News Review to permit him to subscribe to it, even though it did mail some 75 copies of the publication to others at a nominal charge.
In regard to the accuracy of the reporting of what occurred at the City Council meetings, Mrs. Williamson testified that the word "skulduggery" was not used by any speaker at the meeting to whom it was attributed or even by her. She testified that: "I did not use that word. This is a good example of what happens on Tuesday next when the other members of the Editorial Board will read through an article." There is little doubt that the word "skulduggery" was intended to indicate dishonest conduct on the part of Bresler and to hold him up to ridicule and contempt. The word is defined in the Webster's New International Dictionary, (Second Ed. 19) as "Trickery; secret or hidden wickedness or practice" and in the Random House, American College Dictionary (1961) as "N.U.S., dishonorable proceedings, mean dishonesty or trickery." The jury could properly conclude that the reports of the hearing were not accurately reported and were, also, published with a knowledge of their falsity or with serious doubt of their truthfulness.
The appellants contend that there was insufficient evidence as a matter of law that they published a false and defamatory statement about Mr. Bresler with knowledge that it was false or with reckless disregard of whether or not it was false and that they were entitled to a directed verdict for this reason. We do not agree with this contention.
The case is an extraordinary one in that Mr. Bresler was able to establish from Mr. Skolnik and from several of the witnesses for the appellants, e.g., Mayor Smith, Mrs. Williamson and Mrs. Skolnik, that the appellants did in fact know that the use of the term "blackmail" did import serious criminal conduct
The appellants suggest that because they published in the October articles that at each meeting there was one person who expressed the "opposite opinion", i.e., that Bresler was not guilty of blackmail, there was no "unfair comment." In our opinion, however, these statements could indicate that the original use of the term "blackmail" was indeed intended and understood to be used in its sense of importing serious criminal conduct on Bresler's part. As we have indicated, there was evidence from which the jury could and did find that this charge was false, known to be false but was published with actual knowledge of its falsity or with a reckless disregard of whether or not it was false. These facts, in our opinion, distinguish the present case from the cases relied on by the appellants, i.e., Parker v. Kirkland, 298 Ill.App. 340, 18 N.E.2d 709 (1939) (involving a statement by counsel for the newspaper before a quasi-judicial body where the charge of blackmail was relevant to the issues); Bennett v. Seimiller, 175 Kan. 764, 267 P.2d 926 (1954) (involving a charge that the plaintiff was a "traitor" to his local union which the court held was not slanderous, per se in the context used, as not charging the commission of a crime); Flanagan v. Nicholson Publishing Co., 137 La. 587, 68 So. 964 (1915) (involving a charge that the plaintiff's "own union * * * [denounced] him as a traitor" which the court held was not slanderous per se in the context used); Pulvermann v. A.S. Abell Co., supra, and St. Amant v. Thompson, supra. In the latter case, the Supreme Court of the United States, in a case involving the alleged libel of a public official, stated that there must be convincing proof that the appellants "in fact entertained serious doubts as to the truth" of the published statement. It would be difficult to conceive of a case in
In considering the failure of Mrs. Skolnik to check either the court records or with Bresler, himself, by telephone relative to the false charge that various homeowners "had started legal proceedings" against Bresler in regard to construction defects in their homes built by him, the appellants argue that Mrs. Skolnik's failure to check first was at the most negligence and was not a "reckless disregard of the truth" as required by St. Amant. In our opinion, the jury could have concluded from the evidence that Mrs. Skolnik's failure in this regard did amount to a "reckless disregard of the truth." In the first place, Mrs. Skolnik is a knowledgeable, educated person with three and one-half years of college education. She is experienced as a reporter for the News Review and she must have known that the report of the actual institution of suits against a builder and developer "for failure to make construction corrections in accordance with county standards" was calculated to result in serious injury to Bresler's standing as a builder and developer, to his reputation as a competent builder and developer and would hold him up to ridicule and contempt in the very area in which he was engaged in building and construction.
Secondly, it is correct, as the appellants point out, that, in New York Times, the newspaper was not held to have been guilty of such recklessness as is necessary for a finding of actual malice in regard to a public official (but was only guilty of negligence), in failing to check its own files to discover that the statement published by it was false. In the instant case, however, Mr. Skolnik testified that the News Review had "a general Rule that if you don't know the facts, if there is confusion about the facts, you call the principals involved." He also stated that the News Review had on at least two occasions, telephoned Bresler, himself, to verify certain charges made against him and in both instances had discovered that the charges were in fact false and unjustified, and they were not published. The jury might well have found that in the light of this established publishing
Then too, in the present case, there were sufficient facts to indicate to the jury, an affirmative hostility, a personal animus, against Bresler and a desire on the part of the publishers of the News Review to injure his reputation and standing in the Greenbelt area through the use of the false charges. The following facts are sufficient to justify such a conclusion by the jury. The headings of the publications, themselves, such as "AN UNETHICAL TRADE", "ANOTHER CRIPPLING BLOW", "BRESLER REPUDIATES COVENANT", "STARTLED AT BRESLER", "BRESLER INFLUENCES", "BRESLER SUITS", "CITY BATTLES BRESLER", many of which were written by Mr. Skolnik himself; the formation of the CFPG legal fund for the express purpose of filing suits against Bresler by Mr. Stern and Mrs. Skolnik, both of whom were members of the staff of the News Review; the soliciting of funds for the CFPG legal fund through the News Review and the solicitation of collectors by Mrs. Skolnik; the misrepresentation to several persons through the paper that the CFPG legal fund was to be used only to enjoin the "actions of developers which are contrary to the Greenbelt Master Plan" when in fact the legal fund was used to institute (unsuccessful) damage actions against Bresler amounting to nearly $2,000,000 in claimed damages; the close connection between the Skolniks, Mrs. Bergemann, Mrs. Rosetti and Mr. Herling (those to whom the word "blackmail" was attributed), Mrs. Sucher and Mrs. Williamson (who wrote the articles) and Charles Schwan, the president of GHI and the principal opponent of Bresler on the high school and zoning issues; the opposition of the News Review to the zoning of Parcels 1 and 2 for townhouses, but with no opposition to the construction of townhouses by GHI, itself; the fact that Bresler was allegedly making a profit from land once owned by GHI but purchased by Bresler; the attacks on Bresler for allegedly repudiating his agreement in regard to the building of a high-rise apartment instead of townhouses but
In our opinion, it cannot be said in the present case that there was insufficient evidence (with all reasonable inferences from that evidence) from which a jury could find that the appellants published false and defamatory statements about Mr. Bresler with knowledge that they were false or with reckless disregard of whether or not they were false. The appellants were not entitled to a directed verdict in their favor for this reason and the trial court properly, in our opinion, refused to grant their motion for a directed verdict and for a judgment n.o.v.
We now come to the final contention of the appellants, i.e., that the trial court erred in its charge to the jury in four particulars. These are, (a) by instructing the jury that the constitutional protection was limited to comments relating to Bresler's "official conduct", (b) by instructing that "actual malice" consisted of evil intent, a state of mind best described as spite, hostility or deliberate intention to harm which could be inferred from the language of the publications in issue, (c) by refusing to instruct in regard to the meaning of "reckless disregard of truth" under the federal constitutional standard, and (d) by instructing that the appellants conceded that the publications "were not true."
It is well settled in Maryland that in considering alleged errors in a charge of the trial court to the jury, we will consider the charge as a whole and will not select, out of the context of the whole charge, individual statements which might, of themselves and out of context, contain inartificial methods of expression
It is equally well settled that we will only concern ourselves on appeal with the exceptions to the charge filed by the objecting party at the conclusion of the charge itself. Maryland Rule 554 d and e. Jones v. Federal Paper Board Co., supra.
In the present case, the trial court gave a comprehensive and carefully considered charge to the jury.
After advising the jury that the court's instructions in regard to the law were binding upon them, but the findings in regard to the facts were for the jury; that the weight of the evidence is not established by the number of witnesses but by the quality the jury attributed to the testimony; that questions asked by the court should carry no more weight with the jury than those asked by counsel, the trial court then gave the jury the definition of libel as follows:
In regard to considering the publication complained of, the trial court stated:
In regard to the truth of the publications, the trial court instructed:
The trial court then gave examples of absolute and qualified privileges and told the jury:
The trial court then defined "malice" quoting from Black's Law Dictionary as follows:
An additional instruction was then given on the burden of proof on the plaintiff, as follows:
The trial court then instructed in regard to compensatory, nominal and punitive or exemplary damages. In regard to punitive damages, the trial court told the jury:
In regard to blackmail, the trial court gave the following definition:
The trial court further told the jury:
After hearing the exceptions of counsel for the defendants to the charge (counsel for the plaintiff made no exceptions), the trial court gave the following additional instruction:
After further objection by counsel for the defendants, the trial court gave a further additional instruction as follows:
Counsel for the defendants (appellants) then made the following objections:
The appellants contend, first of all, that the trial judge erred in instructing the jury that the constitutional protection was limited to comments relating to Mr. Bresler's "official conduct". The appellants base their contention on the portion of the charge given in the second additional instruction in which the trial court stated in part, "The Constitutional guarantee requires a rule that prohibits a public official or public figure from recovering damages for defamatory falsehood relating to his official conduct unless he proves that the statements were made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not." (Emphasis supplied) Earlier in the charge, the trial court had instructed the jury, "A public official or a public figure, the law permits under the question of privilege or fair comment a wider latitude. In other words, in matters that are of general public interest, [as] the articles complained of were, if you find by a preponderance of the evidence was public activities, there is a constitutional protection for publication of matters regarding a public official or public figure. There is no denial in this case that Mr. Bresler was not a member of House of Delegates and a candidate for Comptroller of the State of Maryland when the last article was published. And the plaintiff cannot recover unless you find, as I say again, by a preponderance of the evidence, that the articles were published with actual malice, knowledge of their being false, or reckless disregard of whether they were true or not." (Emphasis supplied) The trial court further stated: "In reference to the last instruction I gave you, with reference to his official conduct or words as a public official or a public figure."
In New York Times, Mr. Justice Brennan, for the Supreme Court, articulated the rule in regard to "public officials" as follows:
In the concurring opinion of Mr. Justice Goldberg, concurred in by Mr. Justice Douglas, which advocated an even more stringent constitutional guarantee than the majority, it was pointed out that:
In Butts and Walker, federal constitutional protection was extended to publications in regard to the activities of "public figures." The opinion of the Court in Butts and Walker was written by Mr. Justice Harlan, in which Mr. Justice Clark, Mr. Justice Stewart and Mr. Justice Fortas joined. These four justices were of the opinion that the federal rule in regard to "public figures" was not as vigorous as the rule enunciated in
Mr. Chief Justice Warren, however, whose concurrence made up the majority of five, was of the opinion that the New York Times rule in regard to "public officials" should be applied in full vigor, to "public figures."
In view of the close decision in the Supreme Court, it is not entirely clear what the correct rule is in regard to "public figures", but, as we have already indicated, it is of no importance in the present case because the trial court applied the New York
The trial court instructed the jury a number of times that to find for the plaintiff the jury must find, by a preponderance of the evidence that the publication was with actual malice, knowledge of its falsity or reckless disregard of whether it was true or not — substantially in the language of the New York Times test. Indeed in several instances the test was broader than that of New York Times as it was not always limited to a "public official" or a "public figure." This however was favorable to the defendants and injurious, if at all, to the plaintiff, and, as we have stated, the appellants cannot complain of this.
As Mr. Justice Harlan stated in Butts:
This is in accord with the usual Maryland rule as we have already stated. In our opinion, considering the charge as a whole, the jury understood that it was required to find from a preponderance of the evidence that the New York Times rule applied to the activities of Bresler both as a public official and as a public figure. We find no error in the charge in this regard of which the appellants can complain.
The appellants next contend that the trial court erred in instructing the jury that actual "malice" consisted of evil intent, a state of mind best described as spite, hostility or deliberate intent to harm which could be inferred from the language of the publications in issue.
As we have already seen the trial court did define malice as the "intentional doing of a wrongful act without just cause or
Here again, the appellants separate one aspect of the charge from the charge as a whole and claim that this was error under the decision in Rosenblatt v. Baer, supra and Beckley Newspaper v. Hanks, supra, as well as Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir.1966), cert. denied, 385 U.S. 1011 (1967).
The appellants overlook, however, that in a libel action in which punitive damages are sought, it was proper to define "actual malice" as requiring a finding of ill will, spite, hostility and a deliberate intention to harm." Later in the charge the trial judge indicated that if the jury found that the libel was done with "actual malice" toward the plaintiff "or when the defendant acted with recklessness or wanton indifference to the rights of the plaintiff", the jury could assess punitive damages.
In Butts, the opinion of the Court written by Mr. Justice Harlan, indicates that the State law in regard to punitive damages is to be considered and applied. He stated, for the Supreme Court:
See also Snyder v. Fulton, 34 Md. 128, 138, 6 Am. R. 314, 321 (1871).
In our opinion, taking the charge as a whole and considering the last instruction given by the trial court, the jury was instructed and must be assumed to have understood that it must find that the publications in issue were made "with knowledge that it was false or with reckless disregard of whether it was false or true."
In our opinion, the appellants suffered no prejudice from the instruction, considered as a whole, in this regard. If there was any prejudice, it was suffered by the plaintiff, not by the defendants.
The appellants next argue that the trial court erred in its instructions by refusing to instruct in regard to the meaning of "reckless disregard of truth" under the federal constitutional standard.
In their Request to Charge No. 4 the defendants requested an instruction that "Reckless disregard of the truth is more than mere negligence on the part of the newspaper. The plaintiff must show by a preponderance of the evidence that the defendants published defamatory false statements with a high degree of awareness of their probable falsity." This instruction was requested in connection with the article in the June 9, 1966, issue of the News Review written jointly by Mr. and Mrs. Skolnik.
In our opinion, the trial court was under no obligation to give a further definition of the phrase "reckless disregard of the truth" as the phrase is sufficiently definite in itself and sufficiently presented the issue to the jury. The charge, taken as a whole, was in our opinion sufficient in this regard. As we have heretofore indicated, technical precision of individual words is not required in instructions to the jury, and if the charge as a
Finally, the appellants contend that the trial court erred in its instructions to the jury by instructing that the defendants conceded that the publications "were not true." As already stated, there was no plea of justification, i.e., that the publications were true. Moreover, counsel for the defendants stated to the trial court:
The trial court instructed the jury:
The appellants contend that the term "blackmail" in the context in which it was used was an expression of opinion regarding a public proposal. The subheading "Blackmail", however, was not used as an expression of opinion by any one other than the publishers, themselves, and had nothing whatever to do with any "public" proposal. As we have indicated the charge of blackmail was false, the appellants knew that a charge of blackmail was false, but they published it with such knowledge and emphasized the charge in a subheading with block type.
The jury could well have found that the false and defamatory statement was published with a "reckless disregard of truth" and lost any qualified privilege it might otherwise have had. Cf. Stevenson v. Baltimore Baseball Club, 250 Md. 482, 243 A.2d 533 (1968).
Finding no prejudicial error in the rulings and charge of the trial court, the judgment will be affirmed.
Judgment affirmed, the appellants to pay the costs.