Roy Romano, a publicly self-acknowledged former hoodlum and organized crime enforcer, sues Scottsdale Publishing, Inc., the owner of the Scottsdale Progress, for damaging his reputation by linking him to the Don Bolles bombing in a series of newspaper articles in the summer of 1984. He also sues Jonathan Marshall, the Progress publisher, who wrote one of the articles, Don Devereux, the reporter who wrote two of the articles, and the spouses of both men.
The Progress unsuccessfully moved for summary judgment. The trial court denied its motion and instead granted partial summary judgment for Romano, declaring Romano a private figure, who had only to prove negligent defamatory publication to win compensatory damages.
First, the Progress argues that the trial court erroneously declared Romano a private figure. Romano, the Progress points out, had stepped onto the public stage in the fall of 1983, when, in return for immunity from prosecution, he "turned state's evidence" against Joseph Tocco and gave detailed testimony about his own criminal activities as a member of the Tocco
Second, the Progress urges this court to adopt the "libel-proof plaintiff doctrine," heretofore unapplied in Arizona, and to conclude that the trial court erred in failing to hold as a matter of law that Romano's reputation was so poor before the Progress publications that he was incapable of being defamed. See, e.g., Note, The Libel-Proof Plaintiff Doctrine, 98 Harv.L.Rev. 1909 (1985); Guccione v. Hustler Magazine, Inc., 800 F.2d 298 (2d Cir.1986) cert. denied, 479 U.S. 1091, 107 S.Ct. 1303, 94 L.Ed.2d 158 (1987); for criticism of the doctrine, see also Liberty Lobby v. Anderson, 746 F.2d 1563 (D.C. Cir.1984), rev'd on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Finally, the Progress argues that Romano failed to meet its motion for summary judgment with any evidence to support his punitive damage claim. In the absence of evidence that it acted with "actual malice", Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), or an "evil mind", Gurule v. Illinois Mut. Life Cas. & Co., 152 Ariz. 600, 734 P.2d 85 (1987), the Progress claims entitlement to partial summary judgment on the issue of punitive damages, even if Romano's compensatory damage claim survives.
We accept the first of the Progress arguments. We hold that Romano had become a public figure before the publication of the Progress articles, that he had opened questions of his criminal conduct to journalistic scrutiny and public concern, and that the Progress articles fell within that area of public concern. We further find no basis in Romano's evidence for the inference that the Progress knowingly published falsehoods about Romano. Nor do we find any basis for the inference that the Progress "entertained serious doubts as to the truth of [its] publications" and proceeded in reckless or conscious disregard of such doubts. St. Amant v. Thompson, 390 U.S. 727, 731-2, 88 S.Ct. 1323, 1325-6, 20 L.Ed.2d 262, 267-8 (1968); Dombey, 150 Ariz. at 487, 724 P.2d at 573. Because these holdings result in the complete dismissal of Romano's claim, we need not separately consider the punitive damage portion of that claim. Nor need we reach the second argument of the Progress and determine whether the "libel-proof plaintiff doctrine" should be adopted into Arizona law.
I. Special Action Jurisdiction
Before outlining the facts and explaining our holding, we explain our reason for taking jurisdiction.
Review by special action of a trial court's denial of summary judgment is a rarity and shall remain so. We have discouraged even the filing of such petitions in the past and shall continue to do so. See United States v. Superior Court, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). We make an exception in this case in furtherance of the public's significant first amendment interest in protecting the press from the chill of meritless libel actions. See, e.g., Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir.1966); Schiavone Constr. Co. v. Time, Inc., 619 F.Supp. 684, 686 (D.N.J. 1985).
The absence of merit in plaintiff's case is plain. By taking jurisdiction at this stage, we relieve the parties and the court of a prolonged, costly, and inevitably futile trial; additionally, and more significantly, we relieve the Progress of a potential chilling of its future reporting on activities of organized crime.
The first amendment has been interpreted since New York Times v. Sullivan to extend journalists a wider margin of error in reporting about public figures than in reporting about private figures. In a libel action arising from a publication addressing a matter of public concern, a private figure may recover compensatory damages upon proof by preponderant evidence that he has been negligently defamed. Dombey, 150 Ariz. at 481, 724 P.2d at 567. A public figure, by contrast, "may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, 807 (1974).
Proving knowledge of falsity or reckless disregard for truth is defined in legal shorthand as proving "actual malice."
We determine in this section that Romano must be held to the burden of proving actual malice. We proceed first by examining the three allegedly defamatory publications by the Progress, next by examining Romano's pre-Progress exposure to public scrutiny, and last by analyzing Romano's status as a public figure.
A. The Allegedly Defamatory Publications
1. The June 22 Article:
On June 22, 1984, the Progress published an article by Don Devereux entitled "Mob figure accused of Bolles bombing." The subject of the article was Roy Romano, who had surfaced in the public eye in the fall of 1983, when he had testified as a state's witness at the pre-sentence hearing for Joseph Tocco pursuant to a grant of immunity from the Arizona Attorney General's Office. The June 22 article reported that an unnamed source, interviewed in connection with the Tocco matter, had accused Romano of "placing a deadly bomb beneath the car of Phoenix newsman Don Bolles and detonating it" in 1976. We quote the article in part:
2. The July 20 Article:
On July 20, 1984, the Progress published a second article by Don Devereux, entitled "2nd source names mobster in Bolles bombing." This source, the Progress reported, linked Romano to the bombing along with William Rocco D'Ambrosio and Frank Mossuto, two men who had earlier been reported as suspects in the Bolles case but had never been prosecuted for it. The article stated in part:
The July 20 article quoted other unnamed sources as linking Romano to the mid-70's murder of a motorcycle gang member named David "Rabbit" Lish and proceeded to criticize the attorney general's grant of immunity to Romano. It stated:
3. The October 10 Column:
The third and last of the articles that provoked this suit appeared in the Progress on October 10, 1984. Titled "Open letter to the Arizona Republic," it served as a response by Jonathan Marshall, the Progress publisher, to an Arizona Republic article of September 30, 1984. The Republic had evoked Marshall's response by suggesting that Tocco had duped the Progress into discrediting Roy Romano and by quoting Romano as linking Tocco to the Don Bolles bombing. The Republic had stated:
The Republic reviewed the history of Romano's service as a state's witness against Tocco and explained that Romano had consented "to be interviewed by the Republic because he believed Tocco duped [the Progress] into publishing articles that claimed he murdered Bolles." The Republic additionally quoted an accusation made by an assistant attorney general in a Tocco case pleading to the effect that Don Devereux, the author of the June 22nd and July 20th Progress articles, had been "`used' by Tocco and by his attorney ... to retaliate against Romano." The Republic reported that the attorney general had called upon the Progress to share any sources of evidence implicating Romano in the Bolles killing, but quoted Devereux as declining to do so because of what he believed to be mishandling of other information he had given to the attorney general's office.
Marshall's October 10th "Open letter" rejected "the implication that ... Devereux and the Progress somehow were duped by Tocco." Marshall further challenged
Marshall continued that the Progress "now has four sources who claim to know about Romano's complicity in the Bolles murder," but added that the Progress would not disclose those sources to the attorney general's office "because in the past state investigators have leaked confidential information and frightened away confidential sources that had been provided to them by the newspaper."
Romano sought retraction; the Progress declined to retract; this lawsuit followed.
B. Romano's Pre-Progress Public Exposure:
On October 29, 1982, approximately twenty months before the first of the Progress articles, Roy Romano entered into an immunity agreement with the Arizona Attorney General's Office. The attorney general was then prosecuting Joseph Tocco in a case pending in the Superior Court in Maricopa County. Romano agreed to provide information regarding the offenses charged in the pending case and, additionally, with regard to "various offenses and activities engaged in by Tocco et. al." The information was to include an account of Romano's own participation as driver in an unsolved robbery-murder (the James Lindsay murder referred to in the July 20th article discussed above). The attorney general agreed that Romano's statements, if complete and truthful, would not be used against him in any state criminal prosecution for offenses involving Tocco or his fellow defendants in the pending case.
The state agreed initially to treat Romano as a confidential source and not to disclose "the fact of [his] statement or its contents unless and until ordered to do so or it is necessary to allow fair and full cross-examination of [him] at a deposition or judicial proceeding." Later, by addendum to his October 29th agreement, Romano agreed to serve as a witness in pending prosecutions of Tocco and other defendants and "that the fact and the extent of [his] cooperation could be disclosed...."
On November 16, 1982, Tocco pled guilty to a variety of crimes, including prostitution, fraud, burglary, robbery, and loan-sharking. The state sought a life sentence for Tocco at a pre-sentence hearing that commenced on November 22, 1983. Romano testified at the hearing. His testimony, which extended over a period of three weeks, was sensational and attracted predictable media attention.
His opening day of testimony was described by the Arizona Republic on November 23, 1983, in a front page article entitled
The article identified Romano and explained that he had been granted prosecutorial immunity in exchange for his testimony. It recounted Romano's revelation that he had participated in a robbery of the Pornorama Adult Theater in 1976, that his accomplice had fatally shot a person named James Donald Lindsay in the course of that robbery, and that Tocco had supplied the murder weapon and had helped to cover up the murder. The article went on:
One such "whacking" was vividly described in testimony on November 23 and recounted by the Arizona Republic on November 24 in the lead article on the front page of its second section. The Republic stated:
The article quoted Romano as acknowledging that he had administered the beating with the same pistol later used in the Lindsay killing and that the purpose of the beating was to pressure the bar owner into giving Tocco an interest in the business. It continued:
Romano's testimony in the extended Tocco hearing was the subject of further articles in the Republic, Arizona's largest newspaper, on November 29, December 8, and December 11, 1983, and in the Phoenix Gazette, Arizona's second largest newspaper, on November 30 and December 1, 1983. The November 30 Gazette article noted:
Romano's testimony at the Tocco pre-sentence hearing implicated neither Tocco nor himself in the Don Bolles murder. However, in a December 11, 1983, article entitled "Role in Bolles trial haunted mobster," the Republic cited statements by Romano and his fellow witness Sam Garee to the effect that Tocco feared a perjury indictment for alibi testimony Tocco provided James Robison at Robison's 1977 trial for the murder of Bolles.
As far as we can determine from the record provided, the Arizona Republic article of December 11, 1983, was the last Phoenix area newspaper article to feature Romano until June 22, 1984, when the Progress published the first of its accusations that Romano was a participant in the Don Bolles murder.
C. Defining the Range of Romano's Reputational Self Exposure:
In return for the benefits of his immunity agreement with the state, Roy Romano accepted the role of principal witness for the Tocco prosecution. The trial court found, however, that, if he thereby assumed public figure status to any extent, he did so only as to the narrow range of racketeering activities in which he acknowledged serving Joseph Tocco. This limited public figure status, in the trial court's view, did not encompass journalistic comment associating Romano with the murder of Don Bolles. We believe that the trial court defined Romano's public figure status too narrowly. In analyzing this issue, we focus on the reputational risks to which Romano voluntarily exposed himself when he accepted the benefits and burdens of his immunity agreement with the state.
We derive this focus from Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), where the Supreme Court of the United States gave fullest definition to public figure status. As backdrop to its exposition of the reputational risks of public figures, the court compared public officials with private individuals. The former, the court stated, accept as one of the "necessary consequences of ... involvement in public affairs ... the risk of closer public scrutiny than might otherwise be the case." 418 U.S. at 344, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. Most private individuals, by contrast, "[relinquish] no part of [their] interest in the protection of [their] own good name." 418 U.S. at 345, 94 S.Ct. at 3010, 41 L.Ed.2d at 808. Some private persons, however, relinquish that interest to some degree by "voluntarily inject[ing]" themselves into "a limited range of [public] issues." They "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved" and, in so doing, "invite attention and comment." 418 U.S. at 345 and 351, 94 S.Ct. at 3009 and 3013, 41 L.Ed.2d at 808 and 812.
Such persons, the Court concluded, are public figures for a limited range of issues, and, if injured by falsehoods published in the course of journalistic comment on those issues, can recover only upon satisfying the demanding New York Times v. Sullivan requirement of proving "actual malice" by clear and convincing evidence.
The language throughout Gertz emphasizes the element of voluntary self-exposure in the acquisition of public figure status. One assumes a role of special prominence in the resolution of a public issue, relinquishes a degree of privacy, invites attention and comment, and runs the risk of closer public scrutiny; in consequence, he exposes his reputation to the harmful inaccuracies he must tolerate as a member of a society which accords constitutional "breathing space" to a free press. 418 U.S. at 342, 94 S.Ct. at 3008, 41 L.Ed.2d at 806. See also Dombey, 150 Ariz. at 484-5, 724 P.2d at 570-1 ("Whatever requirement there might be to `thrust' oneself into a public controversy ... [is] satisfied by ... [one's] voluntary participation in activity calculated to lead to public scrutiny.")
Before considering the extent of Romano's reputational self exposure, we address his preliminary argument that his self exposure was involuntary and did not engender public figure status at all. Citing Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958,
Though the cited statements are correct, neither they nor the Time and Wolston cases from which they are derived support Romano's claim of private figure status. Plaintiff in Time, Inc. v. Firestone was a party to a lurid and highly publicized marital dissolution trial. She sued Time for publishing what she claimed was a false and defamatory account of her divorce. Plaintiff was not, the court held, a public figure. Her resort to the public forum of the court was a matter of necessity, the means to end her marriage. And though her dissolution held some interest "to some portion of the reading public," plaintiff had "assumed no special prominence in the resolution of public questions." 424 U.S. at 454, 455, 96 S.Ct. at 965, 47 L.Ed.2d at 163.
The plaintiff in Wolston was the nephew of persons who pled guilty in 1957 to charges of espionage for the Soviet Union. Wolston was interviewed by the F.B.I. at the time that his aunt and uncle were arrested and, on several later occasions, gave grand jury testimony pursuant to subpoena. In 1958, however, he failed to respond to a grand jury subpoena. There followed an order to show cause why he should not be held in contempt of court. The plaintiff ultimately pled guilty to contempt, received a one-year suspended sentence, and was placed on probation, conditioned on his further cooperation with the grand jury. The contempt proceedings against the plaintiff resulted in what the Supreme Court called a "flurry of publicity," after which the plaintiff "succeeded for the most part in returning to the private life he had led prior to the issuance of the grand jury subpoena." 443 U.S. at 163, 99 S.Ct. at 2705, 61 L.Ed.2d at 457. Sixteen years later, in 1974, plaintiff was defamed by a publication falsely listing him "among Soviet agents identified in the United States." 443 U.S. at 159, 99 S.Ct. at 2703, 61 L.Ed.2d at 455. The Supreme Court addressed the issue whether plaintiff's 1958 guilty plea to contempt charges and the publicity attendant upon those charges rendered him a public figure for purposes of the 1974 publication. The plaintiff had not "injected" himself into the espionage controversy, the Court noted; rather, he was "dragged unwillingly into the controversy" by the government.
443 U.S. at 166, 167, 99 S.Ct. at 2707, 61 L.Ed.2d at 461.
Romano's case differs from Firestone and Wolston in significant respects. The first distinction lies in the subject matter of the testimony from which his public figure status flowed. Neither Firestone nor Wolston took a prominent position in the resolution of a public controversy. The Firestone divorce was a private controversy that happened to arouse public attention as it played out in a public court. The espionage controversy that engulfed Wolston was a public one, but Wolston was an insignificant figure caught up on its fringe. Neither in open court nor in news interviews did he reveal himself as knowledgeable about Soviet espionage; his sole public involvement was to answer contempt charges and to explain a single instance of failure to appear at a private grand jury hearing. Romano, by contrast, knowledgeably detailed the operations of an organized crime syndicate in Arizona. His testimony was more than merely newsworthy. Wolston, 443 U.S. at 167, 99 S.Ct. at 2707,
Second, Romano was not simply drawn into a public forum against his will to defend himself against action by the state. Certainly Romano's immunity agreement prevented action by the state, and we may safely assume that the state employed the heavy leverage of investigation and impending prosecution to initiate its bargain with Romano. We may further assume that Romano would have preferably kept his criminal activities private, never attracting the state's attention. Yet the state brought ample consideration to the bargain; it offered Romano the very substantial benefit of immunity. And in choosing, as the price of immunity, to assist the state in exposing Joseph Tocco, Romano undertook to expose himself as well. Such reputational self-exposure was among the costs of a highly beneficial bargain, and we decline to hold that Romano assumed that cost involuntarily.
Third, the risk of eventual, unflattering limelight was entailed in Romano's choosing a life of crime. The United States Supreme Court declined in Wolston to hold that "any person who engages in criminal conduct automatically becomes a public figure...." Wolston, 443 U.S. at 168, 99 S.Ct. at 2708, 61 L.Ed.2d at 461. Romano, however, was not simply "any person who engages in criminal conduct"; he was, rather, a career criminal who, by his own admission, willingly participating in beatings, robberies, burglaries, and extortions on behalf of a criminal syndicate. Romano acknowledges "maybe a hundred" acts of residential and commercial burglary, felony theft "about 85 times or so," more than a hundred sales of stolen property, several graphic instances of violent extortion, multiple perjuries, occasional insurance frauds, and various other crimes. Given the nature, duration, and intensity of this behavior, he "cannot complain that the spotlight eventually turned on him." Dombey, 150 Ariz. at 485, 724 P.2d at 571.
We conclude that Romano was a public figure. Analysis turns to the contours of his public figure status. We take their measure by examining the risk Romano ran of closer public scrutiny. Gertz, 418 U.S. at 344, 94 S.Ct. at 3009, 41 L.Ed.2d at 808. See also Dombey, 150 Ariz. at 484-5, 724 P.2d at 570-1. This risk, he suggests, merely encompassed hostile public reaction to the crimes that he revealed. We reject that argument, as we reject the trial court's conclusion that his risk ran only to the borders of the controversy over the criminal activity of the Tocco band. The Constitution provides more "breathing space" than that.
One risk Romano clearly ran is that the public would critically scrutinize the costs and benefits of the immunity agreement that the state extended him. What kind of a man had the state allied with? Was his information credible? Were his revelations thorough? Should a man like Romano be shielded from criminal justice? If so, how far did the shield extend, and how far should it extend?
In describing the first risk, we have alluded to a second: that the public, including its probing representatives, the media, would inquire whether Romano, with or without Tocco, had participated in other, more serious crimes than those he had disclosed to Tocco's prosecutors.
Both risks came to bear in the series of publications by the Progress. The source for the June 22 article, the first in the Progress series, was an interview arising from the Tocco case itself. Its thrust was not simply that Romano had killed Don Bolles but that, "as a result of Romano having `turned state's evidence' against Tocco, `they're letting a killer walk free....'" The second and third articles continued the theme of questioning whether state law enforcement officials had adequately explored Romano's reputation as a killer "before making him a paid informant and granting him numerous immunities...."
We find ample nexus between the Progress articles and the public issues raised by Romano's immunity-shielded testimony for the state. A glove-like fit is not required. We conclude that the Progress articles addressed issues that Romano had
For the purpose of this holding, we assume the falsity of the allegation that Romano participated in killing Don Bolles. We turn to the question whether Romano has satisfied his burden of proving that the Progress either knowingly published a false accusation or that it entertained serious doubts as to the truth of its accusation, but proceeded in conscious disregard of such doubts. St. Amant v. Thompson, 390 U.S. 727, 731-32, 88 S.Ct. 1323, 1325-26, 20 L.Ed.2d 262, 267-68 (1968); Dombey v. Phoenix Newspapers, Inc., 150 Ariz. at 487, 724 P.2d at 753.
III. Absence of Malice
If the trial court had merely declared Romano a private figure and relieved him of the burden of proving actual malice as an element of his compensatory damage claim, our opinion would now end. We would reverse, hold Romano a public figure, and remand for the trial court's determination whether Romano's evidence could meet the rigorous constitutional malice standard.
The trial court's ruling was not so limited, however. The Progress not only moved for summary judgment as to the entirety of Romano's claim, but, alternatively, for partial summary judgment as to his punitive damage claim. This alternative motion, like the primary motion, was denied.
Romano has never disputed that the Progress articles addressed matters of public concern. Where a defamation suit arises from publications on matters of public concern, even a private figure must produce clear and convincing evidence of actual malice in order to reach a jury with a punitive damage claim. Gertz, 418 U.S. at 348, 349, 94 S.Ct. at 3011, 41 L.Ed.2d at 810, 811; Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). Thus, in denying summary judgment to the Progress on the issue of punitive damages, the trial court necessarily viewed Romano's evidence as adequate to support a jury finding of actual malice. In the exercise of our appellate obligation to "make an independent examination of the whole record" to prevent "forbidden intrusion on the field of free expression," we reach a contrary conclusion. New York Times v. Sullivan, 376 U.S. at 284-6, 84 S.Ct. at 728-9, 11 L.Ed.2d at 709-10. We hold that no jury applying the "clear and convincing" evidentiary standard could reasonably find actual malice from the evidence that the plaintiff presented in the summary judgment proceeding.
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court undertook to define the process of summary judgment screening for actual malice in a constitutional defamation case. The District of Columbia Court of Appeals had found it irrelevant to summary judgment that the plaintiff must persuade a fact-finder of actual malice by clear and convincing rather than preponderant evidence. Justice Scalia, then a member of the circuit court, wrote that to impose the greater evidentiary burden at summary judgment "would change the threshold summary judgment inquiry from a search for a minimum of facts supporting the plaintiff's case to an evaluation of the weight of those facts and (it would seem) of the weight of at least the defendant's uncontroverted facts as well." Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1570 (1984). The Supreme Court reversed, observing that, "in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson, 477 U.S. at 254, 106 S.Ct. at 2513, 91 L.Ed.2d at 215. The Court contrasted weighing the evidence to "determine the truth of the matter," a jury function, with screening the evidence to determine "whether there is a genuine issue for trial," a judicial function. Id. at 249, 106 S.Ct. at 2511, 97 L.Ed.2d at 212. It concluded:
Id. at 255-56, 106 S.Ct. at 2514, 91 L.Ed.2d at 216. See also Dombey, 150 Ariz. at 485-486, 724 P.2d at 571-572.
We apply this standard to the evidence of this case.
In the course of this proceeding the Progress disclosed that Cynthia Roberts was the unnamed source for its June 22nd article and that Keith Nation was the unnamed source for its July 20th article.
Don Devereux described by affidavit his preparation of those articles:
Jonathan Marshall expressed his confidence in Devereux by affidavit and indicated his own process of review as follows:
Both Devereux and Marshall indicated by affidavit that they "entertained no serious doubts about the truth of the statements contained in the articles" at the time of publication and had developed no such doubts "after two years of litigation and extensive discovery in this lawsuit." Both men testified at depositions to the same effect.
These professions by the defendants are not, of course, conclusive. The elements of actual malice may be inferred from objective facts. Bose v. Consumers Union, 692 F.2d 189 (1st Cir.1982), aff'd 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502. Our Supreme Court stated in Selby v. Savard, 134 Ariz. 222, 225, 655 P.2d 342, 345 (1982), "[A] defamation defendant cannot escape liability merely by alleging subjective belief in the truth of the matter published. `[P]roof of the necessary state of mind could be in the form of objective circumstances from which the ultimate fact could be inferred'" The determination whether a defendant "in fact entertained serious doubts as to the truth of the statement may be proved by inference, as it would be rare for a defendant to admit such doubts." Bose, 692 F.2d at 196.
Romano seeks to meet his burden by several converging avenues of inference. The first begins with his claim of a mistranscription of the Cynthia Roberts tape. The allegedly mistranscribed portion of the tape was quoted by the Progress in the June 22 article as follows:
Romano provided the trial court with an affidavit and report by a doctor of English linguistics, who conducted a detailed phonological analysis of the Roberts tape and concluded that Ms. Roberts probably said, "... I've heard them talking about it" rather than "... I've heard him. ..." The
Romano submitted the affidavit of Jimmy Dale Patten, an associate professor of journalism at the University of Arizona, who stated the opinion that the Progress "failed to meet the standard of care of a reasonable journalist" because, among other reasons:
Assuming the accuracy of the phonological analysis of the Roberts tape and, thus, assuming that Roberts used the word "them" rather than "him", we find no reasonable chain of inference therefrom to the conclusion that the Progress entertained serious doubts as to the accuracy of its report and proceeded to publish despite them. Romano provides no basis for concluding that the misinterpretation of "them" as "him" should have been apparent to Devereux or Marshall. He presents no evidence that either defendant was phonologically trained. His linguistic expert, though able by complex analysis to express an opinion as to what Ms. Roberts probably said, offers no opinion that "them" rather than "him" should have been clear to the untrained ear. If, as appears from his report, an untrained listener could reasonably have interpreted the word as "him" and could thereby have understood Roberts to have once heard Romano implicate himself in the Don Bolles bombing, there was surely no "obvious reason to doubt ... the accuracy of [Roberts's] report." St. Amant v. Thompson, 390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 268. Indeed her report, as understood by the Progress, gains plausibility from Romano's acknowledgment at deposition that he may have bragged to his associates about crimes he did not commit.
We conclude that Romano's evidence of mistranscription and misconstruction of the Roberts tape does not amount to clear and convincing evidence of actual malice.
Romano also argues that malice can be inferred from the Progess's repetition of serious charges without retraction. Romano cites Restatement (Second) of Torts § 580 A comment d for the proposition, "Republication of a statement after the defendant has been notified that the plaintiff contends that it is false and defamatory may be treated as evidence of reckless diregard." (Emphasis added). The flaw in this argument is that Romano has produced no evidence that he demanded retraction before the third of the Progress articles appeared. Repetition of serious charges does not in and of itself support the inference of actual malice in the absence of any indication that the publisher disregarded intervening evidence of their falsity. See, e.g., Selby v. Savard, 134 Ariz. 222, 655 P.2d 342 (1982); Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986).
Romano's other arguments to establish actual malice may be clustered together. From the Patten affidavit Romano advances the proposition that the Progress fell short of "the standard of care of a reasonable journalist" by accusing Romano of murder without including his response and by basing that accusation "solely on information provided by a source who is not on record and who is of questionable character." Keith Nation, the source of the second article, should have been suspect, Romano argues, for two reasons: first, because Devereux knew of a 1976 police report in which Nation was described as "offer[ing] no information as to bombing suspect ...," and second, because Devereux,
This argument falls far short. The Bolles murder remains largely unresolved despite Adamson's confession and conviction. Although Keith Nation had not previously identified Roy Romano as a participant in the Bolles murder, it is not implausible that his recollection of useful particulars was refreshed or released by the spate of publicity accorded Romano for his 1983 testimony in the Tocco hearing. Devereux detailed his effort to check his stories, including his effort to locate and interview Romano.
The weakness of Romano's proof is highlighted by comparison with the proof in Dombey and Selby, two cases that Romano invokes for support. In Dombey a newspaper repeatedly published defamatory articles about a public figure despite contrary facts in its own previous articles and despite detailed contradictory information provided by the plaintiff and his associate. In the midst of its series of articles, the newspaper received a detailed request for retraction, citing specific inaccuracies and the facts to refute them, but the managing editor did not read it. 150 Ariz. at 489, 724 P.2d at 575. In Selby a private, non-media defendant defamed a public official, settled the resulting lawsuit when advised by his attorney that the charges were "completely without merit," repeated the charges in a complaint to the Department of Public Safety, was advised by the DPS investigator that the charges lacked substance, and nonetheless continued to spread the accusations. 134 Ariz. at 223-24, 655 P.2d at 343-44.
When Romano's case is measured against these cases, it amounts at most to what Professor Patten labelled it — a case of negligent investigation. It is well established, however, that actual malice "is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing," St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325, 20 L.Ed.2d at 267. Nor it is "based on journalistic standards or their breach," Dombey, 150 Ariz. at 489, 724 P.2d at 575. "Actual malice is subjective," Id. Because Romano has failed to produce significant probative evidence that the defendants published the challenged articles in conscious disregard of subjective, serious doubts, we are obliged to end this suit.
Romano's evidence cannot be reasonably interpreted by a jury as clear and convincing evidence of actual malice. Because the Progress articles addressed public issues in which Romano had voluntarily exposed himself to scrutiny as a public figure, his failure to produce evidence of actual malice entitles the Progress to summary judgment against the entirety of his complaint.
We accept jurisdiction, reverse the judgment of the trial court, and remand with instructions to enter summary judgment in favor of all defendants.
BROOKS, P.J., and KLEINSCHMIDT, J., concur.
(Emphasis added; internal citations omitted). 152 Ariz. at 602, 734 P.2d at 87. Despite the substantial correlation between the two standards, no Arizona case has yet squarely framed the issue whether, when a defamation plaintiff has presented a submissible case of actual malice, he has thereby necessarily presented a submissible case of evil mind. Nor does this case frame that issue. Plaintiff's failure to prove actual malice disposes of the entirety of his claim and relieves us of addressing the niceties of the distinction, if any, between actual malice and evil mind.
We follow, as we must, the majority opinion in this constitutional malice case. The question arises, however, what import, if any, Anderson has for the summary judgment process in non-defamation cases involving issues to be proven by clear and convincing evidence. Are judges to view all evidence at the summary judgment stage "through the prism of the [applicable] substantive evidentiary burden?" Or does Anderson simply articulate a constitutionally mandated rule of heightened screening for defamation cases involving questions of actual malice? Anderson does not answer this question. Nor does Dombey, where our supreme court conducted an Anderson-like screening of the evidence in a constitutional malice case. 150 Ariz. at 490, 724 P.2d at 576. Because our disposition of this case does not require us to decide this issue, we merely identify it, leaving its resolution for another day.