JUSTICE STEVENS delivered the opinion of the Court.
A public figure may not recover damages for a defamatory falsehood without clear and convincing proof that the false "statement was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). See Curtis Publishing Co. v. Butts, 388 U.S. 130, 162 (1967) (opinion of Warren, C. J.). In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), we held that judges in such cases have a constitutional duty to "exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." Id., at 514. In this case the Court of Appeals affirmed a libel judgment against a newspaper without attempting to make an independent evaluation of the credibility of conflicting oral testimony concerning the subsidiary facts underlying the jury's finding of actual malice. We granted certiorari to consider whether the Court of Appeals' analysis was consistent with our holding in Bose. 488 U.S. 907 (1988).
Respondent, Daniel Connaughton, was the unsuccessful candidate for the office of Municipal Judge of Hamilton, Ohio, in an election conducted on November 8, 1983. Petitioner is the publisher of the Journal News, a local newspaper that supported the reelection of the incumbent, James Dolan. A little over a month before the election, the incumbent's Director of Court Services resigned and was arrested on bribery charges. A grand jury investigation of those charges was in progress on November 1, 1983. On that date, the Journal News ran a front-page story quoting Alice Thompson, a grand jury witness, as stating that Connaughton had used "dirty tricks" and offered her and her sister jobs and a trip to Florida "in appreciation" for their help in the investigation.
Invoking the federal court's diversity jurisdiction, Connaughton filed an action for damages, alleging that the article was false, that it had damaged his personal and professional reputation, and that it had been published with actual malice. After discovery, petitioner filed a motion for summary judgment relying in part on an argument that even if Thompson's statements were false, the First Amendment protects the accurate and disinterested reporting of serious charges against a public figure. The District Court denied the motion, noting that the evidence raised an issue of fact as to the newspaper's interest in objective reporting and that the "neutral reportage doctrine" did not apply to Thompson's statements.
The Court of Appeals' review of the actual malice determination involved four steps. It first noted the wide disparity between the respective parties' versions of the critical evidence, pointing out that if the jury had credited petitioner's evidence it "could have easily concluded that Thompson's
Judge Guy dissented. In his opinion the admissions made by Connaughton in his interview with Journal News reporters the day before the story was published sufficiently corroborated Thompson's charges to preclude a finding of actual malice. Id., at 853-854. He was satisfied, as a matter of law, that respondent had failed to prove actual malice by clear and convincing evidence, regardless of whether determinations of credibility made by the jury are subject to a de novo standard of review. Id., at 855.
Petitioner contends that the Court of Appeals made two basic errors. First, while correctly stating the actual malice standard announced in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the court actually applied a less severe
There is language in the Court of Appeals' opinion that supports petitioner's first contention. For example, the Court of Appeals did expressly state that the Journal News' decision to publish Alice Thompson's allegations constituted an extreme departure from professional standards.
The language in the Court of Appeals' opinion discussing professional standards is taken from Justice Harlan's plurality opinion in Curtis Publishing Co. v. Butts, supra, at 155. In that case, Justice Harlan had opined that the New York Times actual malice standard should be reserved for cases brought by public officials. The New York Times decision, in his view, was primarily driven by the repugnance of seditious libel and a concern that public official libel "lay close" to
It also is worth emphasizing that the actual malice standard is not satisfied merely through a showing of ill will or "malice" in the ordinary sense of the term.
Certain statements in the Court of Appeals' opinion, when read in isolation, appear to indicate that the court at times substituted the professional standards rule for the actual malice requirement and at other times inferred actual malice from the newspaper's motive in publishing Thompson's story. Nevertheless, when the opinion is read as a whole, it is clear that the conclusion concerning the newspaper's departure
The question whether the Court of Appeals gave undue weight to the jury's findings — whether it failed to conduct the kind of independent review mandated by our opinion in Bose — requires more careful consideration. A proper answer to that question must be prefaced by additional comment on some of the important conflicts in the evidence.
The most important witness to the bribery charges against the Director of Court Services was Patsy Stephens, Alice Thompson's older sister. In a tape-recorded interview conducted in Connaughton's home between 12:30 and 4:30 a.m. on September 17, 1983, Stephens explained how, on 40 or 50 occasions, she had visited with the Court Administrator, Billy Joe New, in his office and made cash payments to dispose of "DUI" and other minor criminal charges against her former husband and various other relatives and acquaintances.
Alice Thompson was one of the eight persons present at the tape-recorded interview on September 17.
The tape of Alice Thompson's interview is 1 hour and 20 minutes long. Significant portions of it are inaudible or incoherent. It is clear, however, that Thompson made these specific charges:
— that Connaughton had stated that his purpose in taping the interview with Patsy Stephens was to get evidence with which he could confront New and Judge Dolan and "scare them into resigning" without making any public use of the tapes;
— that he would buy a restaurant for the two sisters' parents to operate;
— that he would take them out to a victory dinner at an expensive French restaurant after the election;
— that Connaughton would not allow knowledge of the sisters' involvement to become public.
Toward the end of the interview, Blount made two significant comments. He announced that "Pam will, of course, write the story," id., at 314, and he asked "[w]hat would happen if we called your sister," id., at 316. In response to the first comment, Thompson volunteered a somewhat improbable explanation for her motivation in seeking the interview,
On Sunday, October 30, an editorial appeared in the Journal News under the headline "Municipal Court Race will have More than One Loser."
On October 31, a reporter for the Journal News telephoned Connaughton and asked him to attend a meeting with Jim Blount, stating "that the endorsement may hang in the balance." Tr. 457 (Aug. 9, 1985). Connaughton met with the reporter, Blount, and Cocozzo that afternoon and discussed a variety of subjects. One of the subjects was the rumor that Connaughton had an influential link to the Cincinnati Enquirer. Connaughton asserted that he had "no extraordinary pull or any inside track to anybody down there," and that any rumor to the contrary was "a lie." Id., at 458. Another subject was Connaughton's participation in the investigation of Billy Joe New. Connaughton provided a chronology of the events that led to his filing of the complaint against New and explained that he believed that he had an obligation "as an attorney and officer of the court to report [New's] crimes." Id., at 458-459. No mention was made of Thompson's interview or her charges against Connaughton. Id., at 460. After about an hour, Jim Blount received a telephone call and then told Connaughton that a reporter wanted to interview him. Id., at 462.
Connaughton then went to another office where Blount and Long advised him that they had interviewed Alice Thompson
Thus, while categorically denying that he intended to confront New and Judge Dolan with the tape of the Stephens interview to scare them into resigning, Connaughton admitted that he might well have speculated about what they would say or do if they heard the tapes.
The following day the lead story in the Journal News — under the headline "Bribery case witness claims jobs, trip offered" — reported that "[a] woman called to testify before the. . . Grand Jury in the Billy Joe New bribery case claims Dan Connaughton, candidate for Hamilton Municipal Judge, offered her and her sister jobs and a trip to Florida `in appreciation' for their help."
As the Court of Appeals correctly noted, there was evidence in the record — both in the Thompson tape and in the Connaughton tape — that would have supported the conclusion that Thompson was telling the truth and that Connaughton was dissembling. See 842 F. 2d, at 840. On the other hand, notwithstanding the partial confirmation of Thompson's charges in the Connaughton tape, there remained a sharp conflict between their respective versions of the critical events. There was unquestionably ample evidence in the record to support a finding that Thompson's principal charges were false, either because she misinterpreted remarks by Connaughton and his wife, or because Thompson was deliberately lying.
The jury listened to the tape recordings of the two conflicting interviews and also observed the demeanor of the two witnesses as they testified in open court. They found that Connaughton was telling the truth and that Thompson's charges were false. The fact that an impartial jury unanimously reached that conclusion does not, however, demonstrate that the Journal News acted with actual malice. Unlike a newspaper, a jury is often required to decide which of two plausible stories is correct. Difference of opinion as to the truth of a matter — even a difference of 11 to 1 — does not alone constitute clear and convincing evidence that the defendant acted with a knowledge of falsity or with a "high degree of awareness of . . . probable falsity," Garrison, 379 U. S., at 74. The jury's verdict in this case, however, derived additional support from several critical pieces of information that strongly support the inference that the Journal
On October 27, after the interview with Alice Thompson, the managing editor of the Journal News assembled a group of reporters and instructed them to interview all of the witnesses to the conversation between Connaughton and Thompson with one exception — Patsy Stephens. No one was asked to interview her and no one made any attempt to do so. See App. 56-57, 61, 83-85. This omission is hard to explain in light of Blount's and Long's repeated questions during the Connaughton and Thompson interviews concerning whether Stephens would confirm Thompson's allegations. See id., at 277, 313, 316. It is utterly bewildering in light of the fact that the Journal News committed substantial resources to investigating Thompson's claims, yet chose not to interview the one witness who was most likely to confirm Thompson's account of the events. However, if the Journal News had serious doubts concerning the truth of Thompson's remarks, but was committed to running the story, there was good reason not to interview Stephens — while denials coming from Connaughton's supporters might be explained as motivated by a desire to assist Connaughton, a denial coming from Stephens would quickly put an end to the story.
The remaining six witnesses, including Connaughton, were all interviewed separately on October 31. Each of them denied Alice Thompson's charges and corroborated Connaughton's version of the events. Thus, one Journal News reporter testified at trial that Jeanette and Ernest Barnes denied that any promises, offers, or inducements were made and that he had known the Barneses for several years and considered them both credible. Id., at 89-90. Another reporter testified that she interviewed Dave Berry and that Berry stated that absolutely no promises or offers were made. Id., at 91-92. By the time the November 1 story appeared,
The newspaper's decision not to listen to the tapes of the Stephens interview in Connaughton's home also supports the finding of actual malice. During the Connaughton interview, Long and Blount asked if they could hear the tapes. Id., at 259. Connaughton agreed, ibid., and later made the tapes available, id., at 48, 142. Much of what Thompson had said about the interview could easily have been verified or disproved by listening to the tapes. Listening to the tapes, for example, would have revealed whether Thompson accurately reported that the tape recorders were selectively turned on and off and that Connaughton was careful not to speak while the recorders were running. Similarly, the tapes presented a simple means of determining whether Stephens and Thompson had been asked leading questions, as Thompson claimed. Furthermore, if Blount was truly in equipoise about the question whether to endorse the incumbent judge for reelection — as he indicated in the column that he published on Sunday, October 30 — it is difficult to understand his lack of interest in a detailed description of the corrupt disposition of 40 to 50 cases in Judge Dolan's court. Even though he may have correctly assumed that the account did not reflect on the integrity of the judge himself, surely the question whether administrative shortcomings might be revealed by the tapes would be a matter in which an editor in the process of determining which candidate to endorse would normally have an interest.
Moreover, although also just a small part of the larger picture, Blount's October 30 editorial can be read to set the stage for the November 1 article. Significantly, this editorial appeared before Connaughton or any of the other witnesses were interviewed. Its prediction that further information concerning the integrity of the candidates might surface in the last few days of the campaign can be taken to indicate that Blount had already decided to publish Thompson's allegations, regardless of how the evidence developed and regardless of whether or not Thompson's story was credible upon ultimate reflection.
Finally, discrepancies in the testimony of Journal News witnesses may have given the jury the impression that the
The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S., at 510-511. This rule is not simply premised on common-law tradition,
There is little doubt that "public discussion of the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule," Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 300 (1971), and the strongest possible case for independent
This value must be protected with special vigilance. When a candidate enters the political arena, he or she "must expect that the debate will sometimes be rough and personal," Ollman v. Evans, 242 U. S. App. D. C. 301, 333, 750 F.2d 970, 1002 (1984) (en banc) (Bork, J., concurring), cert. denied, 471 U.S. 1127 (1985), and cannot " `cry Foul!' when an opponent or an industrious reporter attempts to demonstrate" that he or she lacks the "sterling integrity" trumpeted in campaign literature and speeches, Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971). Vigorous reportage of political campaigns is necessary for the optimal functioning of democratic institutions and central to our history of individual liberty.
In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the "opportunity to observe the demeanor of the witnesses," Bose, 466 U. S., at 499-500, the reviewing court must " `examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect,' " New York Times Co., 376 U. S., at 285 (quoting Pennekamp v. Florida, 328 U.S. 331,
In considering the actual malice issue, the Court of Appeals identified 11 subsidiary facts that the jury "could have" found.
There is no dispute that Thompson's charges had been denied not only by Connaughton, but also by five other witnesses before the story was published. Thompson's most serious charge — that Connaughton intended to confront the incumbent judge with the tapes to scare him into resigning and otherwise not to disclose the existence of the tapes — was not only highly improbable, but inconsistent with the fact that Connaughton had actually arranged a lie detector test for Stephens and then delivered the tapes to the police. These facts were well known to the Journal News before the story was published. Moreover, because the newspaper's interviews of Thompson and Connaughton were captured on tape, there can be no dispute as to what was communicated, nor how it was said. The hesitant, inaudible, and sometimes unresponsive and improbable tone of Thompson's answers to various leading questions raise obvious doubts about her veracity. Moreover, contrary to petitioner's contention that the prepublication interview with Connaughton confirmed the factual basis of Thompson's statements, Brief for Petitioner 47, review of the tapes makes clear that Connaughton unambiguously denied each allegation of wrongful conduct. Connaughton's acknowledgment, for instance, that his wife may have discussed with Stephens and Thompson the possibility of working at an ice cream store that she might someday open, hardly confirms the allegations that Connaughton had promised to buy a restaurant for the sister's parents to operate, that he would provide Stephens with a job at the Municipal Court, or even that he would provide Thompson with suitable work.
It is also undisputed that Connaughton made the tapes of the Stephens interview available to the Journal News and that no one at the newspaper took the time to listen to them. Similarly, there is no question that the Journal News was aware that Patsy Stephens was a key witness and that they failed to make any effort to interview her. Accepting the jury's determination that petitioner's explanations for these omissions were not credible, it is likely that the newspaper's inaction was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of Thompson's charges. Although failure to investigate will not alone support a finding of actual malice, see St. Amant, 390 U. S., at 731, 733, the purposeful avoidance of the truth is in a different category.
There is a remarkable similarity between this case — and in particular, the newspaper's failure to interview Stephens and failure to listen to the tape recording of the September 17 interview at Connaughton's home — and the facts that supported the Court's judgment in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). In Butts the evidence showed that the Saturday Evening Post had published an accurate account of an unreliable informant's false description of the Georgia athletic director's purported agreement to "fix" a college football game. Although there was reason to question the informant's veracity, just as there was reason to doubt Thompson's story, the editors did not interview a witness who had the same access to the facts as the informant and did not look at films that revealed what actually happened
As in Butts, the evidence in the record in this case, when reviewed in its entirety, is "unmistakably" sufficient to support a finding of actual malice. The judgment of the Court of Appeals is accordingly
In my view, in cases like this the historical facts — e. g., who did what to whom and when — are reviewable only under the clearly-erroneous standard mandated by Federal Rule of Civil Procedure 52. Credibility determinations fall in this category, as does the issue of knowledge of falsity. But as I observed in dissent in Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 515 (1984), the reckless disregard component of the New York Times Co. v. Sullivan "actual malice" standard is not a question of historical fact. A trial court's determination of that issue therefore is to be reviewed independently by the appellate court.
As I read it, the Court's opinion is consistent with these views, and — as JUSTICE KENNEDY observes — is consistent with the views expressed by JUSTICE SCALIA in his concurrence. Based on these premises, I join the Court's opinion.
JUSTICE BLACKMUN, concurring.
I agree with the majority's analysis and with the result it reaches. I write separately, however, to stress two points.
First, the case reaches us in an odd posture, one which stands in the way of giving full consideration to aspects of the content of the article under attack that perhaps are of constitutional significance. Petitioner has abandoned the defense of truth, see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), despite the fact that there might be some support for that defense. We therefore must presume that the jury correctly found that the article was false, see ante, at 681, and decide whether petitioner acted with knowledge or reckless disregard of its falsity. In addition, petitioner has eschewed any reliance on the "neutral reportage" defense. Cf. Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (CA2), cert. denied, 434 U.S. 1002 (1977). This strategic decision appears to have been unwise in light of the facts of this case. The article accurately reported
Second, I wish to emphasize that the form and content of the story are relevant not only to the falsity and neutral reportage questions, but also to the question of actual malice. In the past, this Court's decisions dealing with actual malice have placed considerable emphasis on the manner in which the allegedly false content was presented by the publisher. See Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 12-13 (1970) (truthful and accurate reporting of what was said at public meeting on issues of public importance not actionable); Time, Inc. v. Pape, 401 U.S. 279, 290-292 (1971) (erroneous interpretation of Government report not "actual malice"). Under our precedents, I find significant the fact that the article in this case accurately portrayed Thompson's allegations as allegations, and also printed Connaughton's partial denial of their truth. The form of the story in this case is markedly different from the form of the story in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), where the informant's description of the events was presented as truth rather than as contested allegations. These differences in presentation are relevant to the question whether the publisher acted in reckless disregard of the truth: presenting the content of Thompson's allegations as though they were established fact would have shown markedly less regard of their possible falsity.
I am confident, however, that these aspects of the majority's opinion are omissions in explanation rather than in analysis, and that the majority's opinion cannot fairly be read to hold that the content of the article is irrelevant to the actual malice inquiry. Because I am convinced that the majority has considered the article's content and form in the course of its painstaking "review of the entire record," see ante, at 689, and because I conclude that the result the majority reaches is proper even when the contents of the story are given due weight, I concur.
JUSTICE KENNEDY, concurring.
I join the opinion of the Court, for in my view it is not inconsistent with the analysis set out in JUSTICE SCALIA'S separate concurrence.
JUSTICE SCALIA, concurring in the judgment.
I agree with the Court's disposition of this case, and with its resolution of the second legal issue on which we granted certiorari, namely whether "highly unreasonable conduct constituting an extreme departure from ordinary standards of investigation and reporting" is alone enough to establish
I disagree, however, with the Court's approach to resolving the first and most significant question upon which certiorari was granted, which was the following:
That question squarely raised the conflict that the Sixth Circuit perceived it had created with an earlier decision of the District of Columbia Circuit, en banc, concerning the requirement we set forth in Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), that judges "exercise independent judgment" on the question "whether the record establishes actual malice with convincing clarity," id., at 514. The nub of the conflict, which is of overwhelming importance in libel actions by public figures, is whether this means, as the Sixth Circuit understood the District of Columbia Circuit to have held in Tavoulareas v. Piro, 260 U. S. App. D. C. 39, 817 F.2d 762 (1987) (en banc), that the trial judge and reviewing courts must make their own "independent" assessment of the facts allegedly establishing malice; or rather, as the Sixth Circuit held here (explicitly rejecting Tavoulareas), that they must merely make their own "independent" assessment that, assuming all of the facts that could reasonably be found in favor of the plaintiff were found in favor of the plaintiff, clear and convincing proof of malice was established.
Today's opinion resolves this issue in what seems to me a peculiar manner. The Court finds it sufficient to decide the present case to accept, not all the favorable facts that the
This analysis adopts the most significant element of the Sixth Circuit's approach, since it accepts the jury's determination of at least the necessarily found controverted facts, rather than making an independent resolution of that conflicting testimony. Of course the Court examines the evidence pertinent to the jury determination — as a reviewing court always must — to determine that the jury could reasonably have reached that conclusion. But the Court does not purport to be exercising its own independent judgment as to whether Stephens was not contacted simply because Connaughton failed to place her in touch with the newspaper, whether Blount did not listen to the tapes because he thought they would provide no new information, or whether the Journal News employees believed Thompson's allegations to be substantially true.
More important, however, even if each of these factual findings happened to be necessary to the verdict and interrogatory response, I see no reason to make them the exclusive focus of our analysis, instead of consulting (as the Sixth Circuit did, and as courts invariably do when reviewing jury verdicts) all the reasonably supported findings that the jury could have made. It may well be true that "we need only consider those factual findings that were essential to the jury verdict" in the sense that referring to those alone is enough to decide the case — i. e., those alone establish clear and convincing proof of malice. But one could pick out any number of categories of permissible jury findings that would meet that test. For example, it might be true that we could find the requisite proof of malice by considering, not all the evidence in its light most favorable to the plaintiff, but only that evidence produced by a particular witness. We could then say "we need only consider the findings the jury might have made based on the testimony of Mr. Smith to decide this case." I see no more logic in limiting the inquiry the way the Court has done than in limiting it in this latter fashion.
In sum, while the Court's opinion is correct insofar as the critical point of deference to jury findings is concerned, I see no basis for consulting only a limited number of the permissible findings. I would have adopted the Sixth Circuit's analysis in its entirety, making our independent assessment of whether malice was clearly and convincingly proved on the assumption that the jury made all the supportive findings it reasonably could have made. That is what common-law courts have always done, and there is ultimately no alternative to it.
Petitioner did not argue in its petition for a writ of certiorari, and does not now argue, that the neutral reportage doctrine immunized its coverage of Thompson's allegations. Accordingly, we do not review this aspect of the District Court's judgment.
1. "Do you unanimously find by a preponderance of the evidence that the publication in question was defamatory toward the plaintiff?"
2. "Do you unanimously find by a preponderance of the evidence that the publication in question was false?"
3. "Do you unanimously find by clear and convincing proof that the publication in question was published with actual malice?" App. 201.
There is some debate as to whether the element of falsity must be established by clear and convincing evidence or by a preponderance of the evidence. Compare Firestone v. Time, Inc., 460 F.2d 712, 722-723 (CA5) (Bell, J., specially concurring), cert. denied, 409 U.S. 875 (1972), with Goldwater v. Ginzburg, 414 F.2d 324, 341 (CA2 1969), cert. denied, 396 U.S. 1049 (1970). See also Tavoulareas v. Piro, 260 U. S. App. D. C. 39, 63-64, n. 33, 817 F.2d 762, 786, n. 33 (en banc), cert. denied, 484 U.S. 870 (1987); Franklin & Bussel, The Plaintiff's Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary L. Rev. 825, 863-865 (1984). We express no view on this issue.
"Equally apparent from the jury's answer to the second special interrogatory is that it considered the published Thompson charges to be false. Its finding is understandable in light of the plaintiff's proof which disclosed that the Journal's effort to verify her credibility ended in an avalanche of denials by knowledgeable individuals; [and] its inability to produce a single person who supported Thompson's accusations . . . .
"Moreover, the jury obviously refused to credit the Journal's construction of Connaughton's interview of October 31. It accepted Connaughton's express denials of each Thompson charge and considered the significant language interpreted by the Journal to constitute his admissions of those charges, when read in context, as nothing more than conjecture elicited by structured questions calculated to evoke speculation. Thus, upon reviewing the record in its entirety, this court concludes that the jury's determinations of the operational facts bearing upon the falsity of the article in issue were not clearly erroneous." Id., at 841.
"In Curtis Publishing Co. v. Butts, the Supreme Court accorded public figures as well as public officials recovery of damages for the publication of `defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.' 388 U. S. at 155." Id., at 845.
At another point, the court wrote:
"Accordingly, this court concludes that the Journal's decision to rely on Thompson's highly questionable and condemning allegations without first verifying those accusations through her sister, [Stephens], and without independent supporting evidence constituted an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers which demonstrated a reckless disregard as to the truth or falsity of Thompson's allegations and thus provided clear and convincing proof of `actual malice' as found by the jury. Butts, 388 U. S. at 153." Id., at 847 (emphasis supplied).
See also id., at 840.
"A review of the entire record of the instant case discloses substantial probative evidence from which a jury could have concluded (1) that the Journal was singularly biased in favor of [the incumbent] and prejudiced against Connaughton as evidenced by the confidential personal relationship that existed between [the incumbent] and Blount, the Journal Editorial Director, and the unqualified, consistently favorable editorial and daily news coverage received by [the incumbent] from the Journal as compared with the equally consistent unfavorable news coverage afforded Connaughton; (2) that the Journal was engaged in a bitter rivalry with the Cincinnati Enquirer for domination of the greater Hamilton circulation market as evidenced by Blount's vituperous public statements and criticism of the Enquirer; (3) that the Enquirer's initial expose of the questionable operation of the [incumbent's] court was a high profile news attraction of great public interest and notoriety that had `scooped' the Journal and by Blount's own admission was the most significant story impacting the . . . campaign[;] (4) that by discrediting Connaughton the Journal was effectively impugning the Enquirer thereby undermining its market share of the Hamilton area." Id., at 843.
Later in the opinion, the court again stressed that "the evidence adduced at trial demonstrated that the Journal was motivated to publicize Thompson's allegations, not only by a desire to establish its preeminence in the reporting of Hamilton political news, but also by a desire to aid the [incumbent's] campaign." Id., at 846.
The phrase "actual malice" is unfortunately confusing in that it has nothing to do with bad motive or ill will. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52, n. 18 (1971) (opinion of BRENNAN, J.). By instructing the jury "in plain English" at appropriate times during the course of the trial concerning the not-so-plain meaning of this phrase, the trial judge can help ensure that the New York Times standard is properly applied. Tavoulareas, 260 U. S. App. D. C., at 84, 817 F. 2d, at 807 (R. B. Ginsburg, J., concurring). See also Westmoreland v. CBS Inc., 596 F.Supp. 1170, 1172-1173, n. 1 (SDNY 1984) (suggesting that jury confusion can be minimized if a less confusing phrase, such as "state-of-mind," "deliberate or reckless falsity," or "constitutional limitation" is used in the jury's presence).
"Q. Okay. So in other words, based on what he said to you, you believed him?
"A. Blackmail. I mean, you know, the way he phrased it, the way he said it, you know. He said all he wanted to do was get enough evidence on Billy, and he also used Dolan's name, which I don't know what he was going to get on Dolan — to scare them into resigning. I said what happens when they resign? Nothing more will be said about anything. He said when I take the bench nothing will be said." App. 291-292.
"Q. What did they promise you? Or what did they say when you asked them?
"A. They said my help would be deeply appreciated. And they went on to talk about the three weeks vacation they was planning on taking when the election was . . .
"Q. He was planning to take three weeks vacation?
"A. Yes, the family — Dave Berry and Martha, and Dan.
"MR. BLOUNT: They wanted you to go along?
"A. Me and my sister would be welcome to go along with Dave . . .
"(By Mrs. Long)
"Q. Did they say they would pay your expenses?
"A. Yeah. I made it clear to them that I couldn't afford a trip to Florida.
"MR. BLOUNT: Was the tape recorder on at that time?
"A. Oh, no.
"(By Mrs. Long)
"Q. Now where were they going to go?
"A. Three weeks in Florida.
"Q. And they added Disneyworld?
"A. (Inaudible) a three weeks trip to Florida. And they had a friend in Florida that wouldn't be home at the time, that we could stay at their condominium." Id., at 293-294.
"Q. Okay. So it would just be your parents being a manager, they wouldn't have to buy — did you understand him that they wouldn't have to . . .
"A. Oh, they was going to do everything, you know. They was just going to put us in there to work, or to run it. They wanted my mother to run the business for them." Id., at 307.
"Q. Why did he offer to find you a job?
"A. Because the day at the house, going back to the first time I met them, Martha was asking me did I work, or anything, and I was telling her I was looking for work. I had been out of a job. Evidently she must have talked to her husband about it, and that night over at his home, he said are you employed now, you know, . . . and I said no. So he said, we'll see if we can't do something about that. I told him I wanted away from bartending and stuff; he said we'll see if we can't do something about it. You know, a decent job." Id., at 295-296.
"MR. MASANA: I'm going to interject. What about the job you were promised?
"A. Oh, when they promised me, you know, the secure job and everything, they also promised — they promised Patsy a job too.
(By Mrs. Long)
"Q. That she would be in with Breedlove's Lunch, or cafe?
"A. No, they promised Patsy a decent job, you know.
"Q. That she would be (inaudible).
"A. That she would be good up in Court. That come out of his own mouth. That come out of Dan's mouth; he said we need somebody like you up at the courthouse. Municipal Court." Id., at 309.
"Q. This would be after he wins the election?
"A. Ummm-hmmm." Id., at 306.
"A. [T]hey had already promised that our names wouldn't be mentioned that nobody would know about us . . . ." Id., at 302.
"Q. Have you had any repercussions from this?
"A. I've been under a lot of (inaudible) strain. I guess.
"Q. Other people calling you besides the Enquirer?
"A. Yeah. I've had people that I thought were my friends call me and accuse me of being a snitch and a rat. I don't like to carry that name, and that's what a lot of people is thinking. That knows me.
"MR. BLOUNT: They were just made, they didn't threaten you?
"A. (inaudible) a snitch. You name it, and I'm that. I just want to get that cleared up." App. 320.
"MR. BLOUNT: Was being questioned by the Connaughtons tougher than going to Court?
"A. Ummm-hmmm. They turned that tape recorder on and off so many times, you know, left out what they wanted to.
"MR. BLOUNT: Was the tape recorder on at that time?
"A. Oh, no." Id., at 291-293.
"A. I don't think Dan Connaughton's voice is on it." Id., at 293.
"MR. BLOUNT: Was it Dan Connaughton himself who talked about the trip?
"A. Yeah. He did most of the talking in the living room. Like I said though the tape recorde[r] was off when Dan spoke." Id., at 295.
"A. Oh, yeah. He was leading me in questions, you know.
(By Mrs. Long)
"Q. Can you give us an example?
"A. Well, he kept on trying to get me to say that Dolan had something to do with this, you know?
"Q. Would he phrase it in a question? Like, did Judge Dolan have anything to do with it?
"MR. BLOUNT: Wasn't it true that Judge Dolan did this, or something?
"A. Yeah, you know, and so on. But like I say, if you listen to the tapes you're not going to hear it, because his voice ain't on the tape. . . .
"Q. Sure. So it was a yes, no, situation for you in that he'd phrase it a certain way and all you had to do was yes or no?
"A. Ummm-hmmm. And then, you know, he'd say to repeat that." Id., at 296-298.
There is some tension between this civic interest in fair procedure and Thompson's reluctant participation in the exposure of the corrupt procedures at the Municipal Court, her assertion that although she realized that Connaughton's offers were improper, she would have accepted them if her name had never been mentioned because "that's the way [the system] works," id., at 315, and her displeasure at being called a "snitch and a rat," id., at 320.
"A. She'll tell you about the trips, the dinner at the Maisonette, the jobs and everything. She'll tell you that's the truth, because they was offered to her too." Id., at 313.
"MR. CONNAUGHTON: No, and it had nothing to do with (inaudible) for information or something, i[f] that's what the point of this question is. That's absolutely no, if that's that question. Well, the tape will speak for itself." App. 265.
The tape recording of this interview makes clear that Connaughton said, "No, and it had nothing to do with a quid pro quo for information . . . ." Defendant's Exh. I.
"MR. BLOUNT: You didn't tell her you were going to take the tapes to him? And play them for them?
"A. No. No. What I might have said is, boy, I'd sure like to let them hear these tapes and see what they've got to say for themselves, you know, in a fashion such as that.
"MR. BLOUNT: In an expression of shock.
"MR. CONNAUGHTON: Yeah. Yeah, as I almost fell off of the fireplace. Right." App. 262-263.
"A. That question was discussed, and I was hoping to her, and I told her it would be my intention and hope that she could remain anonymous, yes. But did I promise her anonymity, the answer would be no. Did we discuss it, we sure did, and I expressed to her my desire as well as her desire that she could remain anonymous." Id., at 264.
"Q. Not a waitress job?
"Q. Did you promise a Municipal Court job for her sister Patsy Stephens?
"Q. Did you offer to have `the sisters go on a post election trip to Florida with you and your family to stay in a condominium?'
"Q. Did you offer to set up Thompson's parents, the Breedloves, in what is now Walt's Chambers, which you own and lease?
"A. Absolutely not.
"Q. Why would she say this to us?
"A. What was discussed in an off-handed way, the people who own that bar, who we're not very pleased with, their lease expires next September. My wife has the idea that she wants to open an ice cream type shop like Graeters, or some such thing as that, and I heard her discussing with them that maybe, since Patty had run this Homette Restaurant or something of that nature, that maybe she would help out and participate in the operation of this — whatever you want to call it — deli shop or gourmet ice cream shop. Yes, and I was present when that took place.
"Q. And when was that?
"A. Well, I don't think it was that night. As I recall, this was a later time that we had seen them.
"Q. But that would only be for Patty (unclear)?
"A. I guess Alice was there, and the offer may have been extended to her in that fashion, that she could work there or something — I wouldn't be surprised if that was said." Id., at 264-265.
"MR. BLOUNT: Did you talk about anything like that?
"A. Ummm-hmmm. After getting over the initial shock it became a little clearer to me of — kind of how scary this thing was with the information they gave to us, as far as, if their personal safety was at stake . . . . I do remember in an off-handed way it being discussed . . . they could go down to Hilton Head or Florida, or something like that, or maybe hide out or something like that, I don't know. But I own no property and have nothing to offer them.
"Q. But there was talk about a friend that had a condominium that would be vacant and it was in terms of a full blown trip, you know, you, the Berrys, the whole group going down to Florida and they were welcome to go along. . . .
"A. No. The only conversation I remember along those lines was in connection with, if their personal safety might be in question because of going out on the line and making these serious allegations. . . ." Id., at 266.
"Q. One last statement. At lunch Thompson said that you promised to take her and her sister out to a post election victory dinner at the Maisonette?
"A. I promised to take them to the Maisonette? Hell, I haven't been to the Maisonette for years.
"MR. BLOUNT: Was it discussed? . . .
"A. It may have been. It may have been. I won't deny that some loose discussion in a kidding way was . . .
"A. . . . If she says that I made a firm statement that we were going to definitely plan a party at the Maisonette, that's not true. . . ." Id., at 272-273.
"A. That's alright.
"Q. Her sister Patty is not going to get a job in the Municipal Court if you're elected?
"A. Not that I know of.
"Q. And she's not going to be disappointed to find that out, right?
"[A. She's not going to be disappointed at that. Right.]" Id., at 277.
The bracketed response does not appear in the written transcript, but can be heard on the tape recording. Defendant's Exh. I.
"Q. . . . Did you listen to any of the tapes of the interview conducted by Dan Connaughton with Miss Stephens and Miss Thompson on the 17th of September? Did you listen to any of those tapes before you approved and published the article about Dan Connaughton on the figures of November 18, 1983?
"A. No, because we had from several sources what was on the tape, there was several sources including Mr. Connaughton, that there was no mention of things we were exploring at this time[.]
"Q. You were, I presume, concerned that you were dealing with a credible person in Alice Thompson, were you not?
"Q. Wouldn't one of the simplest ways to determine her credibility be to play the tape to see whether her statement that Dan's voice is not on it is true?
"A. No, because we had been told from other sources that this matter, as I previously said, saying it was not on the tape. This was not discussed on the tape. We had been told by other persons that the tape was junk as far as evidence.
"Q. The tape was what?
"A. Junk." App. 30-31.
Blount further testified that by the time of trial, almost two years after he received the tapes, he had only listened to 15 minutes of the 2 1/2 hours of tape. Id., at 33.
"At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. Cf. Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088-1111 (1942). That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected." Id., at 75.
"A review of the entire record of the instant case disclosed substantial probative evidence from which a jury could have concluded (1) that the Journal was singularly biased in favor of Dolan and prejudiced against Connaughton as evidenced by the confidential personal relationship that existed between Dolan and Blount, the Journal Editorial Director, and the unqualified, consistently favorable editorial and daily news coverage received by Dolan from the Journal as compared with the equally consistently unfavorable news coverage afforded Connaughton; (2) that the Journal was engaged in a bitter rivalry with the Cincinnati Enquirer for domination of the greater Hamilton circulation market as evidenced by Blount's vituperous public statements and criticism of the Enquirer; (3) that the Enquirer's initial expose of the questionable operation of the Dolan court was a high profile news attraction of great public interest and notoriety that had `scooped' the Journal and by Blount's own admission was the most significant story impacting the Connaughton-Dolan campaign[;] (4) that by discrediting Connaughton the Journal was effectively impugning the Enquirer thereby undermining its market share of the Hamilton area; (5) that Thompson's emotional instability coupled with her obviously vindictive and antagonistic attitudes toward Connaughton as displayed during an interview on October 27, 1983, arranged by Billy New's defense attorney, afforded the Journal an ideal vehicle to accomplish its objectives; (6) that the Journal was aware of Thompson's prior criminal convictions and reported psychological infirmities and the treatment she had received for her mental condition; (7) that every witness interviewed by Journal reporters discredited Thompson's accusations; (8) that the Journal intentionally avoided interviewing Stephens between October 27, 1983, the date of its initial meeting with Thompson, and November 1, 1983 when it printed its first story even though it knew that Stephens could either credit or discredit Thompson's statements; (9) that the Journal knew that publication of Thompson's allegations charging Connaughton with unethical conduct and criminal extortion and her other equally damaging statements would completely discredit and irreparably damage Connaughton personally, professionally and politically; (10) that its prepublication legal review was a sham; (11) that the Journal timed the release of the initial story so as to accommodate follow-up stories and editorial comments in a manner calculated to peak immediately before the election in an effort to maximize the effect of its campaign to discredit Connaughton and the Enquirer." 842 F. 2d, at 843-844.
"Burnett's notes were not even viewed by any of the magazine's personnel prior to publication. John Carmichael who was supposed to have been with Burnett when the phone call was overheard was not interviewed. No attempt was made to screen the films of the game to see if Burnett's information was accurate, and no attempt was made to find out whether Alabama had adjusted its plans after the alleged divulgence of information." 388 U. S., at 157.
In this passage, "Stephens" might easily be substituted for "Carmichael," "Thompson" for "Burnett," and "the tapes" for "Burnett's notes" and "the films of the game."
"The slipshod and sketchy investigatory techniques employed to check the veracity of the source and the inferences to be drawn from the few facts believed to be true are detailed at length in the opinion of MR. JUSTICE HARLAN. Suffice it to say that little investigative effort was expended initially, and no additional inquiries were made even after the editors were notified by respondent and his daughter that the account to be published was absolutely untrue. Instead, the Saturday Evening Post proceeded on its reckless course with full knowledge of the harm that would likely result from publication of the article." Id., at 169-170.