Justice Robinson, for the Court.
We are called upon in this case to assess the application of the First Amendment to the United States Constitution, and the pertinent United States Supreme Court precedent interpreting same, to an allegedly defamatory report which was broadcast on the evening news. In so doing, we keep in mind the following highly insightful and germane words of Judge Learned Hand, which were quoted approvingly by the United States Supreme Court in a crucially important First Amendment opinion:
The plaintiff in the instant case, Captain Russell Henry,
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel
On June 4, 2014, Captain Henry commenced the instant action by filing a complaint in Superior Court. Eventually, a second amended complaint was filed on September 8, 2016 (the complaint). The complaint alleged that NBC 10 WJAR (WJAR), which was owned and operated by Media General, "published reports that they referred to as the `Cranston Parking Ticket Scandal' which alleged that patrol officers had issued a substantial increase in parking tickets in the districts represented by two City of Cranston City Council members that had voted against a police union [contract] proposal." The complaint also averred that a news report on WJAR had stated that the tickets were issued in retribution for the votes of the city council members. According to the complaint, Mr. Taricani,
The complaint stated that Mr. Lanni was the News Director of WJAR. The complaint further stated that Officer Leclerc was a Cranston police officer and that Mr. Jacob was a retired Cranston police officer. It posited that Officer Leclerc and Mr. Jacob were the sources on which Media General, Mr. Lanni, and Mr. Taricani relied in preparing the news report at issue. Additionally, according to the complaint, Captain Guilbeault was a Cranston police officer "who published false and defamatory information about the Plaintiff to Defendant, Ronald Jacob, who then told Defendant, James Taricani * * *."
The complaint went on to set forth the following counts: one count of libel (Count One); one count of slander (Count Two); one count of "[v]iolation of R.I. Gen. Laws § 9-1-28.1(a)(4)" due to the fact that defendants "caused the Plaintiff to be placed before the public in a false position" (Count Three); and one count of negligent and intentional infliction of emotional distress (Count Four).
In order to provide the pertinent facts, we now turn to the depositions of the parties, the answers to interrogatories, and other documents in the record.
The Deposition Testimony of James Taricani
Mr. Taricani testified at his deposition that the first time he became aware of the Cranston parking ticket scandal was in late November or early December of 2013, when he "received either an anonymous letter in the mail or * * * an e-mail from someone who made it apparent that they were a Cranston police officer." It was his testimony that he knew the identity of the informant, but he refused to reveal it at his deposition, invoking his "rights as a reporter under the Rhode Island Shield Law."
It was Mr. Taricani's further testimony that, prior to the broadcast of the story at issue, he had composed an initial story about the Cranston parking ticket scandal (which story did not implicate Captain Henry). He added that, in preparing for that initial story, he had requested all of the parking ticket records from "Cranston City Hall * * *." Mr. Taricani elaborated that the unnamed source had provided him a "breakdown of the tickets that were issued prior to the night in question and then after to show the difference;" he added that his source suggested that Mr. Taricani
Mr. Taricani specifically stated in his deposition that, at the time of the broadcast of the second story (i.e., the story at issue in this case), he "certainly believed it was true * * * [b]ased on [his] sources * * *." Media General's answers to Captain Henry's first set of interrogatories stated that Officer Leclerc told Mr. Taricani that Captain Antonucci ordered Captain Henry (who at that time was a lieutenant) to "use his private cell phone to instruct patrol officers to issue" the tickets in question. Mr. Taricani further testified at his deposition that the unnamed source—i.e., Officer Leclerc—"claimed to be speaking with people within the Cranston Police Department that were involved in the internal investigation," but he added that said source did not identify who those individuals were. Mr. Taricani agreed during his testimony that the unnamed source did not actually witness anything that Captain Henry did. He explained that, "because the source had given [him] information about other stories that was accurate, in particular Captain Antonucci's involvement in [the Cranston parking ticket scandal], [he] thought [the source] had credibility."
With respect to Mr. Jacob, Mr. Taricani testified that he was a retired Cranston police officer who had encountered some "difficulties" in obtaining a disability pension and that he had had "his issues with the Cranston Police Department * * * for a number of years." Mr. Taricani agreed that he could characterize Mr. Jacob as a "disgruntled former employee[.]" It was further Mr. Taricani's testimony that, in order to determine whether he was receiving true and accurate information from Mr. Jacob, he asked the unnamed source what he thought of Mr. Jacob (and he added that he might also have asked another police officer in the Cranston Police Department the same question); he stated that the feedback he received was that Mr. Jacob was a "good cop." Mr. Taricani said that he believed Mr. Jacob was credible because Mr. Jacob "kept saying that he * * * was talking to people almost on a daily basis inside the Cranston Police Department that had direct knowledge of the internal investigation." Mr. Taricani further testified that he did not ask Mr. Jacob who his sources were because, in his mind, Captain Henry "was not a big part of the story" and had not done "anything wrong other than follow an order of Steve Antonucci." When Mr. Taricani was asked if, when Mr. Jacob did not reveal his sources, he made a further inquiry of Mr. Jacob about the matter, Mr. Taricani testified that he did not do so because he was "relying on [his] first source who had a track record of being credible * * *."
Mr. Taricani further testified that he learned from one or both of his sources that Captain Henry and Captain Antonucci had a "familial connection;" he added that he called someone else to verify that information and was told that the two men were cousins "or something like that." It was also Mr. Taricani's testimony that, in his opinion, Captain Henry was not "a big player in this story and I didn't think I was really defaming him or saying anything
He also testified that he tried to confirm the story which mentioned Captain Henry by attempting to call "somebody at state police," and he said that he also had a conversation with City Councilman Steve Stycos.
When asked if he thought there was "anything more [he] could have done to determine" whether or not Captain Henry was actually involved, he stated: "Other than talking to [Captain] Henry himself, I don't know what else I could have done." He testified that, prior to airing the story at issue, he had tried to contact Captain Henry but did not receive a response. Specifically, he testified that he called the Cranston Police Department and asked to be connected to Captain Henry's phone; however, he added that the individual with whom he spoke at the police department was unsuccessful in putting him through to Captain Henry's phone and that, therefore, he left a message on the phone of another police officer who he "assumed, wrongly, * * * would contact [Captain] Henry * * *." He further testified that he tried to find Captain Henry's home phone number but was unable to do so, although he stated that he did not remember "how extensive that inquiry was." When asked whether he would have done everything the same way if given the opportunity to do it over again, Mr. Taricani stated that he "perhaps would have made more of an effort to get ahold of [Captain] Henry that day."
Mr. Taricani went on to testify that, sometime after the airing of the story at issue, WJAR was contacted by Captain Henry's attorney, who requested that a correction be made on air. Mr. Taricani said that he then "double checked" with both of his sources and "pressed them," and they both ultimately said: "`Well, now we can't be 100 percent sure * * *.'" He elaborated that, prior to Captain Henry's attorney contacting the station, on the night the story at issue was broadcast, the "investigative reporter unit photographer" called Mr. Taricani at home after the story had aired and informed him that Captain Henry was "upset" about the story and that Captain Henry said that he had "absolutely nothing to do with this ticket scandal." Mr. Taricani stated that, after that conversation, he called WJAR immediately and instructed the personnel there to take the story off the eleven o'clock news and the website, which, according to his testimony, they did. He stated that he did so because he "tried to be fair to [Captain] Henry and [he] didn't want that rebroadcast in any way, shape or form." He testified that the story was thereafter retracted.
Of additional significance is the fact that, according to Captain Henry's first supplemental answer to Mr. Lanni's first set of interrogatories, Colonel Marco Palombo (who was the Chief of the Cranston Police Department during the time at issue) told Mr. Taricani on two occasions prior to the broadcast implicating Captain Henry that Captain Henry had no involvement in the parking ticket scandal.
The Deposition Testimony of Officer Leclerc
Officer Leclerc testified that he was a patrol officer with the Cranston Police Department. He further testified that he was involved in the case because, in November or December of 2013, he was one of Mr. Taricani's sources for the story at issue. Officer Leclerc explained as follows just how he garnered the information that he provided to Mr. Taricani and why he did so:
Officer Leclerc testified that, when they met prior to the story at issue being aired, he told Mr. Taricani that he was a member of the Cranston Police Department. He added that he did not give Mr. Taricani any documentation but simply told him where to look. He testified that, in an email, he specifically mentioned to Mr. Taricani that he had heard about Captain Henry's involvement in the parking ticket scandal. He further stated that he told Mr. Taricani that he had heard the information on "two separate occasions from separate groups in separate locations * * *."
Officer Leclerc testified that he did not know the identity of the individuals he heard discussing the parking ticket scandal in the locker room, but that they had to have been employees of the Cranston Police Department because they were in a restricted area; he added that he told Mr. Taricani that he did not know the identity of the individuals. He then testified that, with respect to the discussion he later overheard from inside his office, he also did not know the identity of the officers involved. It was his testimony that during neither conversation did he overhear statements as to what Captain Henry's specific involvement was.
Officer Leclerc stated at least twice during his deposition that he did not tell Mr. Taricani that Captain Henry ordered officers to issue tickets specifically by using his personal cell phone; but he then clarified, stating that he had in fact told Mr. Taricani that Captain Henry had "used a cell phone to call officers" despite Officer Leclerc's testimony that he had not learned the information about the cell phone from either of the overheard conversations
When asked if he told Mr. Taricani that he was a source familiar with the parking ticket scandal investigation, Officer Leclerc testified that he "never used those words." Additionally, when asked if he did anything to independently verify the conversations he had overheard he stated: "Nothing." However, Officer Leclerc testified that, at the time, with the information that he had, he believed that the information he had relayed to Mr. Taricani was true.
The Deposition Testimony of Ronald Jacob
Mr. Jacob testified that he had retired from the Cranston Police Department and that, at the time of his deposition, he had been a resident of South Carolina for ten years. He testified that he had been receiving a pension since 2005 based on his years of service. He also mentioned that he would be going to court "soon" because he believed that he was entitled to, but was not receiving, a disability pension.
In an email sent on December 23, 2013, Mr. Jacob provided the following information to Mr. Taricani: "`My sources have stated that [Captain] Henry gave the order to the officers to ticket the vehicles. The problem I see with this is [Captain] Henry is an extended family member of Captain and Union President Stephen Antonucci.'" He sent a further email to Mr. Taricani on December 28, 2013, in which he stated: "Another rumor is that Stephen Antonucci and [Captain] Henry were riding around the two districts that were mass ticketed and used their cell phones to contact the officer, who had those posts to ticket certain vehicles in those districts. As I stated before, [Captain] Henry is an extended family member of the Antonucci family. As I stated these are rumors, which need to be looked into."
It was Mr. Jacob's testimony at his deposition that he never "professed to have any firsthand knowledge of anything that was going on" in the department in 2013, nor did he tell Mr. Taricani that he did. Rather, it was his testimony that he spoke to Captain Guilbeault as well as at least three other individuals and that he could not say that Captain Guilbeault was the source of the information about Captain Henry; he added that he could say that Captain Guilbeault was the source of his information only "to about 33 percent" because he was "talking to other people" as well. It was Mr. Jacob's testimony that Captain Guilbeault was the only active-duty Cranston police officer to whom he spoke.
Mr. Jacob testified that he was not "trying to hurt anybody." He added that Mr. Taricani should have "look[ed] into" the information he had provided and that Mr. Taricani "dropped the ball" and "put it out too early." Mr. Jacob testified that he did not consider himself a source for Mr. Taricani, but rather was just "someone who was passing on rumors." He did acknowledge, however, that he did not "really care for" Captain Henry.
In addition, it is worth noting that, on February 5, 2014 (i.e., after the broadcast at issue), Mr. Taricani emailed Mr. Jacob telling him that the other source could no longer be "`sure'" if Captain Henry was involved. That email continued as follows: "When I first talked with you, you told me `a Lt.' helped make the phone calls and the Lt. was related to Antonucci. My other source gave me Henry's name." In a November 8, 2015 email to one of the attorneys who represented the media defendants —i.e., Media General, Mr. Lanni, and Mr. Taricani—Mr. Jacob stated that it was
The Deposition Testimony of Captain Guilbeault
Captain Guilbeault specifically testified that she was not Mr. Jacob's source about events relative to the Cranston Police Department that occurred between November of 2013 and January of 2014. She further testified that she never spoke to Officer Leclerc about the parking ticket scandal except when just "passing in the hallway."
Captain Guilbeault testified specifically that she spoke to Mr. Jacob on the phone on December 14, 2013 but could not remember why she made that call. It was her testimony that she believed the call was "work-related" with respect to requests he had made of her in her role as the "planning and research captain;" she testified that she did not talk to Mr. Jacob about the parking ticket scandal. Captain Guilbeault also testified that the reason she exchanged numerous calls with Mr. Jacob was because there was "an issue with his records."
It was further her testimony that she did mention Captain Henry to Mr. Jacob in an email dated April 9, 2014, after the airing of the story at issue, in which she said that "they are working on getting stuff against Henry now;" she added that her basis for that statement was rumors going around the police station. It is clear from Captain Guilbeault's testimony that she objected to some actions of Chief Palombo as well as the work environment in the Cranston Police Department during the time period at issue.
The Motions for Summary Judgment
On September 15, 2017, Media General, Mr. Lanni, and Mr. Taricani filed a motion for summary judgment alleging that Captain Henry was a public official and, as such, would be required to prove by clear and convincing evidence that any allegedly defamatory statement made about him was made with actual malice; they contended that Captain Henry could not meet that burden. Subsequently, Officer Leclerc and Captain Guilbeault also moved for summary judgment. Mr. Jacob filed a motion to dismiss that was converted by the hearing justice to a motion for summary judgment without objection. A hearing on the several motions was held on January 12, 2018.
Thereafter, on April 4, 2018, the hearing justice issued a written decision. The hearing justice began his analysis by addressing whether or not Captain Henry was a public official. He stated that that was a question of law, and he expressly observed that "[i]n Rhode Island, police officers have been held to be public officials for the purpose of defamation actions." He added that the facts of this case "strongly support finding that Plaintiff was a public official."
The hearing justice went on to address the situation of Captain Guilbeault, holding that "[w]hile there [was] evidence of a grudge between Captain Guilbeault and Plaintiff * * * there [was] no evidence other than pure speculation that suggest[ed] Captain Guilbeault knew the information she allegedly provided Mr. Jacob was false;" he added that plaintiff had failed to show that there was clear and convincing evidence on the basis of which a jury could find actual malice with respect to Captain Guilbeault. With respect to Officer Leclerc, the hearing justice held that Captain Henry had likewise failed to meet his "substantial burden to prove actual malice." (Internal quotation marks omitted.) Lastly, as to Mr. Jacob, the hearing justice held that "[p]laintiff has offered no evidence that suggests Mr. Jacob entertained serious doubts about the accuracy of the information he provided to Mr. Taricani," since his alleged source—Captain Guilbeault—appeared reliable and credible.
Finally, the hearing justice held that the other counts in Captain Henry's complaint also failed because Captain Henry's "defamation claim cannot be rebaptized as another tort to evade the protections of the First Amendment."
Final judgment entered in defendants' favor on April 11, 2018. A timely notice of appeal was filed.
Standard of Review
This Court reviews a hearing justice's grant of a motion for summary judgment in a de novo manner. Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424 (R.I. 2009); see also Deutsche Bank National Trust Company for Registered Holders of Ameriquest Mortgage Securities, Inc. v. McDonough, 160 A.3d 306, 311 (R.I. 2017). "We review the evidence in a light most favorable to the nonmoving party and will affirm the judgment if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Lynch, 965 A.2d at 424. "The party opposing summary judgment bears the burden of proving, by competent evidence, the existence of facts in dispute." Cullen v. Lincoln Town Council, 960 A.2d 246, 248 (R.I. 2008) (internal quotation marks omitted). "[T]he opposing part[y] will not be allowed to rely upon mere allegations or denials in [the] pleadings [but] [r]ather, by affidavits or otherwise [the opposing party has] an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact." The Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 46 (R.I. 2001) (internal quotation marks omitted).
What is more, "summary judgment should enter `against a party who fails to make a showing sufficient to establish
"The constitutional guarantees require * * * a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'— that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
In order to determine whether the actual malice standard announced in New York Times Co. is applicable in this case, we must first address the initial question of whether or not Captain Henry was, at the time of the subject broadcast, a public official.
We begin by noting that "[t]he determination of whether a plaintiff is a public official is a question of law and is generally a function of the court." Hall v. Rogers, 490 A.2d 502, 505 n.3 (R.I. 1985) (citing Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966)); see Pendleton v. City of Haverhill, 156 F.3d 57, 67 (1st Cir. 1998) (Selya, J.) ("The Rosenblatt Court declared that it is for the trial judge in the first instance to determine whether the proofs show [the plaintiff] to be a `public official,' * * * and it explained that ceding this responsibility to the bench reduced the chance that jurors might use the cloak of a general verdict to punish unpopular ideas or speakers * * *. Extrapolating from this pronouncement, a number of federal courts (including this one) have treated First Amendment status determinations as grist for the court's— not the jury's—mill.") (internal quotation marks omitted).
The United States Supreme Court, in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), held that "the `public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control
It is particularly pertinent to note that this Court has previously considered the application of the standard articulated by the Supreme Court in Rosenblatt to the questions of whether or not a police sergeant and a "special police officer" were public officials. Hall, 490 A.2d at 503. In Hall, we specifically held that the police officers were public officials because they qualified as such under the test in Rosenblatt. Id. at 504. We further relied upon the then-recent opinion of the United States Court of Appeals for the Tenth Circuit in Gray v. Udevitz, 656 F.2d 588 (10th Cir. 1981), in which that court likewise determined that a police officer was a public official. Hall, 490 A.2d at 504 (citing Gray, 656 F.2d at 591). In Hall, we noted that, in Gray, the court had reasoned that a police officer qualified as a public official under the Rosenblatt standard because of the officer's authority and ability to use force and the fact that "misuse of that authority can result in significant deprivation of constitutional rights and personal freedoms, as well as bodily injury and financial loss." Id. (citing Gray, 656 F.2d at 591). We further stated in Hall that both the spirit of the doctrine articulated in New York Times Co. and decisions in later cases supported "the classification of police officers as public officials." Id. at 505.
Thus, it is eminently clear to this Court that, under our precedent in Hall, Captain Henry, as a then-lieutenant in the Cranston Police Department, was a public official.
However, Captain Henry invites this Court to revisit Hall. More specifically, he contends that "Hall's blanket rule for all police officers misreads the United States Supreme Court's pertinent case law." He further avers that this Court in Hall announced "a per se rule that all police officers are public officials" and that, in fact, under New York Times Co. and Rosenblatt, it would be more appropriate to apply a case-by-case test. (Emphasis in original.)
After careful consideration of the various applicable legal precedents, we find ourselves entirely unable to agree with any portion of Captain Henry's argument in this regard. In Hall, we specifically applied the test provided for in Rosenblatt, and we do not read that opinion (or the underlying New York Times Co. opinion itself) to, in any way, require a case-by-case analysis with respect to the question of whether or not a police officer is a public official. See Hall, 490 A.2d at 504. Nor, we might add, is Captain Henry able to point to any persuasive support for his suggestion, apart from dicta contained in one particular decision of the United States Court of Appeals for the Sixth Circuit.
Not only are we in unequivocal agreement with the reasoning in Hall, but we are also mindful of the venerable principle of stare decisis. Accordingly, we emphatically decline to depart from our precedent in Hall. See Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 807 (R.I. 2000) ("The doctrine of stare decisis dictates that courts should adopt the reasoning of earlier judicial decisions if the same points arise again in litigation."); see also Air Distribution Corp. v. Airpro Mechanical Co., Inc., 973 A.2d 537, 541 n.6 (R.I. 2009) ("Although it is not a jurisprudential principle that admits of absolutely no exceptions, the principle of stare decisis is nonetheless one of the most basic norms in our legal system."). Captain Henry has failed to provide us with any convincing argument for abandoning the principle established in Hall, and we certainly do not perceive any reason for doing so.
Accordingly, having taken into account the voluminous precedent from the United States Supreme Court, from this Court, and from other courts, it is our unequivocal holding that Captain Henry was a public official at the time of the broadcast at issue.
Having established that Captain Henry was indeed a public official at the time of
1. The Applicable Precedent
In determining whether or not the broadcast was made with actual malice, we "must make an independent examination of the whole record * * *." New York Times Co., 376 U.S. at 285, 84 S.Ct. 710 (internal quotation marks omitted); see also Horne v. WTVR, LLC, 893 F.3d 201, 210-11 (4th Cir. 2018) ("This Court * * * reviews whether there was sufficient evidence of `actual malice' de novo.").
Actual malice must be proved by clear and convincing evidence, and "whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 659, 685, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); see Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511 n.30, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); see also Cullen v. Auclair, 809 A.2d 1107, 1111 (R.I. 2002).
The United States Supreme Court has held that "[w]hen determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times"—i.e., "the judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The United States Supreme Court has stated, with respect to the values which form the basis of the actual malice standard articulated in New York Times Co., that "[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." New York Times Co., 376 U.S. at 269, 84 S.Ct. 710 (internal quotation marks omitted); see also Bridges v. California, 314 U.S. 252, 265, 62 S.Ct. 190, 86 L.Ed. 192 (1941) ("[T]he only conclusion supported by history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press * * * the broadest scope that could be countenanced in an orderly society."). Indeed, the guarantees embodied in the First Amendment, among them freedom of speech and freedom of the press, reflect a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co., 376 U.S. at 270, 84 S.Ct. 710; see also Edwards v. National Audubon Society, Inc., 556 F.2d 113, 115 (2d Cir. 1977) ("In a society which takes seriously the principle that government rests upon the consent of the governed, freedom of the press must be the most cherished tenet. * * * To preserve the marketplace of ideas so essential to our system of democracy, we must be willing to assume the risk of argument and lawful disagreement.") (internal quotation marks omitted).
A statement is made with actual malice when it is made with "knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co., 376 U.S. at 279-80, 84 S.Ct. 710; see also Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 751 (R.I. 2004). The Supreme Court, after noting that reckless disregard "cannot be fully encompassed in one infallible definition," proceeded in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), to elucidate that all-important definition. St. Amant, 390 U.S. at 730-31, 88 S.Ct. 1323. In that case, the Supreme Court stated that its previous opinions had made it "clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing[;] [rather,] [t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." Id. at 731, 88 S.Ct. 1323; see also Harte-Hanks Communications, Inc., 491 U.S. at 667, 109 S.Ct. 2678. Additionally, it 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," but instead requires that a plaintiff show that the defendant "made the false publication with a high degree of awareness of * * * probable falsity * * *." Harte-Hanks Communications, Inc., 491 U.S. at 666, 667, 109 S.Ct. 2678; see also Major v. Drapeau, 507 A.2d 938, 941 (R.I. 1986). The standard itself is subjective. Harte-Hanks Communications, Inc., 491 U.S. at 688, 109 S.Ct. 2678; see Jankovic v. International Crisis Group, 822 F.3d 576, 589 (D.C. Cir. 2016); McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1508 (D.C. Cir. 1996).
2. Captain Henry's Contentions on Appeal
Captain Henry contends on appeal that there is "ample reason to conclude that the Defendants published false facts about the Plaintiff with `actual malice * * *.'" He points to the fact that Mr. Taricani twice spoke with Chief Palombo, who denied Captain Henry's involvement in the parking ticket scandal, and he further points to the fact that Mr. Taricani failed to mention that denial in his report. He also alleges that Mr. Taricani's "weak attempts to reach the Plaintiff prior to publication * * * support the inference that he would rather not have heard Plaintiff's response to his questions." He also asserts that Mr. Taricani testified at his deposition that he should have done more to contact Captain Henry before the report aired.
Captain Henry further points out that Mr. Taricani knew that neither of his sources had firsthand knowledge of Captain Henry's involvement in the parking ticket scandal but instead were reporting rumors. Captain Henry also avers that Mr. Taricani's on-air claim that his sources were close to the parking ticket investigation "had no apparent basis in fact" because Officer Leclerc testified that he did not tell Mr. Taricani that he was close to the investigation; and, in addition, Mr. Taricani was aware that Mr. Jacob bore some animosity towards the Cranston Police Department and, at the pertinent time, lived hundreds of miles away from Cranston. Captain Henry additionally points out that Mr. Taricani testified that the language "`cover their tracks'" in the news report at issue was likely not written by him but rather was added by a producer to make the report "`a little more juiced-up,'" which Captain Henry posits is evidence of reckless disregard for the truth. He further avers that Mr. Taricani "admitted that he knew of factions within the department, suggesting further reason to question the motivation of reports he was receiving."
It is Captain Henry's contention that all of the just-mentioned factors, taken together, are indicative of a genuine issue of material fact with respect to actual malice; he argues that "a jury could find by clear and convincing evidence that [Mr.] Taricani had obvious reason to doubt * * * the rumors that were passed on to him and he chose not to look further because he did not want to find further facts that would contradict his `juiced up' report." In Captain Henry's view, the hearing justice failed to see "the mosaic of reckless disregard that emerges from the whole picture."
Captain Henry makes an impassioned argument to the effect that there is sufficient evidence in this case to allow a reasonable juror to conclude that defendants acted with actual malice. However, after our independent examination of the record and careful reflection, we are unpersuaded. It appears to us that, in his briefing before this Court, Captain Henry, while acknowledging that the applicable standard is that of actual malice, actually proceeds to apply a negligence standard to this case. Actual malice is not measured by what a reasonable, prudent person would do, nor is it measured by a showing of ill will or of malice in the ordinary sense. See St. Amant, 390 U.S. at 731, 88 S.Ct. 1323; see also Harte-Hanks Communications, Inc., 491 U.S. at 666-67, 109 S.Ct. 2678. Actual malice requires something quite different; it requires a showing of knowledge of the falsity of the defamatory statement or reckless disregard for whether or not it is false. See New York Times Co., 376 U.S. at 279-80, 84 S.Ct. 710. It creates an exceptionally high hurdle for a defamation plaintiff to overcome. See McFarlane, 91 F.3d at 1515 ("[T]he standard of actual malice is a daunting one.") (internal quotation marks omitted).
In assessing whether or not Captain Henry has cleared that hurdle, we begin by looking specifically at the media defendants —Media General, Mr. Lanni, and Mr. Taricani.
In our opinion, after a thorough review of the record as well as Captain Henry's contentions and the applicable legal precedent, we would be hard-pressed to identify even a scintilla of evidence that would be the basis for a rational factfinder to conclude by clear and convincing evidence that the media defendants acted with actual malice in airing the story at issue. And it should be recalled that a "scintilla of evidence" is insufficient to overcome the instant motions for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Mr. Taricani relied on the information which he received from two sources in reporting the story at issue; the deposition testimony and other documents in the record reflect that one or both of those sources specifically named Captain Henry and spoke of what they indicated was his purported involvement in the parking ticket scandal. Mr. Taricani testified at his deposition that he believed Officer Leclerc to be a credible source because Officer Leclerc had given him information previously about the parking ticket scandal, which information Mr. Taricani had been able to verify from public records. What is more, Mr. Taricani testified that he asked Officer Leclerc what he thought of Mr.
What is more, it is important to note that Mr. Taricani testified that he subjectively believed the story to be true at the time of publication. See Harte-Hanks Communications, Inc., 491 U.S. at 688, 109 S.Ct. 2678; see also Moffatt v. Brown, 751 P.2d 939, 941 (Alaska 1988). It is not case-determinative that Officer Leclerc and Mr. Jacob may have been passing on mere rumors; reporting those rumors without further investigation, even if they turned out to be erroneous, may perhaps have been negligent, but it was certainly not evidence of actual malice. See Harte-Hanks Communications, Inc., 491 U.S. at 688, 109 S.Ct. 2678 ("[F]ailure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard."); St. Amant, 390 U.S. at 731, 88 S.Ct. 1323 ("[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing."); see also Hall, 490 A.2d at 505 ("Failure to verify information, standing alone, does not constitute recklessness.").
Indeed, there is nothing in the record of this case to show that Mr. Taricani's reliance on his two sources and his reasons for finding them to be credible were in any way reckless or that he had any serious doubts as to the veracity of what they were relating to him.
Thus, despite Captain Henry's contentions to the contrary, the media defendants' reliance on Mr. Taricani's sources without any additional investigation, such as looking for confirmation of the information which his sources provided him or making greater efforts than he did make to contact Captain Henry before the airing of the story at issue, did not rise to the level of actual malice. See Newton, 930 F.2d at 669 ("Even an extreme departure from accepted professional standards of journalism will not suffice to establish actual malice; nor will any other departure from reasonably prudent conduct, including the failure to investigate before publishing.").
It remains an established principle that purposeful avoidance of the truth can support a finding of actual malice, but that clearly was not what happened in this case. See Harte-Hanks Communications, Inc., 491 U.S. at 692-93, 109 S.Ct. 2678. Contrary to Captain Henry's assertion, the fact that Chief Palombo twice denied Captain Henry's involvement in the parking ticket scandal to Mr. Taricani certainly does not amount to evidence of purposeful avoidance of the truth. Indeed, "liability under the clear and convincing proof standard of New York Times v. Sullivan cannot be predicated on mere denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error." Edwards, 556 F.2d at 121 (internal quotation marks omitted); see also Lohrenz v. Donnelly, 350 F.3d 1272, 1285 (D.C. Cir. 2003); see generally Rodney A. Smolla, 1 Law of Defamation § 3:65.50 (2d ed.) (May 2021 Update) ("[A] reporter need not believe self-serving denials[;] * * * [a] denial only serves to buttress a case for actual malice when there is something in the content of the denial or supporting evidence produced in conjunction with the denial that carries a doubt-inducing quality.") (internal quotation marks omitted).
Nor, we would add, is a retraction of the story at issue automatically an indication of actual malice. In fact, it has been asserted that "[t]he issuance of a prompt retraction may be utilized by a defendant to prove the absence of actual malice." Smolla, 1 Law of Defamation at § 3:81 (emphasis added); see, e.g., Logan v. District of Columbia, 447 F.Supp. 1328, 1332 (D.D.C. 1978) ("[T]he correction published the next day by the Post is significant and tends to negate any inference of actual malice.") (internal quotation marks omitted).
Finally, we would note that, in our view, there was no portion of the information which was relayed to Mr. Taricani that was inherently improbable or for which there would be obvious reasons to doubt the veracity thereof. See St. Amant, 390 U.S. at 732, 88 S.Ct. 1323.
We have conducted an independent examination of the record in this case, and we have carefully reviewed ample legal precedent. In doing so, we have taken Captain Henry's evidence as true, making every justifiable inference in his favor. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. It is our conclusion that there is insufficient evidence upon which a reasonable jury could find, by clear and convincing evidence, that the actions of the media defendants (even when taken as a whole) would support a conclusion by a rational factfinder that they were taken with knowledge of the falsity of Captain Henry's involvement in the parking ticket scandal or with reckless disregard as to the truth thereof.
We now turn to Officer Leclerc. According to Officer Leclerc's deposition testimony, he overheard two separate conversations which mentioned Captain Henry's involvement in the parking ticket scandal, although he did not know the identity of the individuals he overheard. He further testified that he knew Captain Antonucci and Captain Henry were related, were on the police union's executive board together, and stood to be deprived of a substantial monetary gain as a result of the City Council's failure to approve the police union contract proposal. It was his testimony that, for those reasons, he believed that the information he passed on to Mr. Taricani was true. See Harte-Hanks Communications, Inc., 491 U.S. at 688, 109 S.Ct. 2678 (stating that the actual malice standard is subjective). It is highly unlikely that this evidence would be sufficient for a jury to find that Officer Leclerc defamed Captain Henry even under a negligence standard; and it is certainly insufficient under the actual malice standard. See id. at 666-67, 109 S.Ct. 2678; St. Amant, 390 U.S. at 731, 88 S.Ct. 1323. Our conclusion is not altered by the fact that Officer Leclerc did not undertake any further investigation of the remarks that he overheard. Even given that fact, there is simply not sufficient evidence on which a rational factfinder could find that Officer Leclerc acted with actual malice. See, e.g., Newton, 930 F.2d at 669.
The same is true with respect to Mr. Jacob. It is true that Mr. Jacob was a disgruntled former employee of the Cranston Police Department, but that fact alone does not satisfy the actual malice standard. See, e.g., Kidder v. Anderson, 354 So.2d 1306, 1309 (La. 1978) ("That police officers were disgruntled and antagonistic to their proposed chief is not necessarily an indication of their unreliability as informants."). There is no evidence of any kind in this case to suggest that Mr. Jacob had any reason to doubt the veracity of his sources, even if he was merely "passing on rumors * * *." His actions may possibly have constituted negligence at most, but they certainly do not rise to the level of actual malice. See Harte-Hanks Communications, Inc., 491 U.S. at 666-67, 109 S.Ct. 2678. In our judgment, the evidence with respect to Mr. Jacob is simply insufficient for a jury to rationally find that he acted with actual malice.
The final defendant for us to consider is Captain Guilbeault. The complaint alleges that Captain Guilbeault was Mr. Jacob's source for the information pertaining to Captain Henry, which information Mr. Jacob in turn provided to Mr. Taricani. Even assuming arguendo that she was the source, there is no evidence that she knew the information which she was providing to Mr. Jacob was false or that she conveyed it with reckless disregard as to its truth or falsity. See New York Times Co., 376 U.S. at 279-80, 84 S.Ct. 710. The only even potentially relevant piece of information that Captain Henry points to is the fact that, according to the hearing justice's decision, Captain Guilbeault had a lawsuit pending against Captain Henry and the City of Cranston. Captain Henry also contends that Captain Guilbeault purportedly had a "grudge" against him. Those facts, even when assumed to be true, are clearly inadequate to support a determination that Captain Guilbeault acted with actual malice.
In reaching our conclusion that there is no evidence in this case on which a rational juror could find that defendants acted with actual malice, we are cognizant of the following statement by the United States Supreme Court: "Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." St. Amant, 390 U.S. at 732, 88 S.Ct. 1323; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Additionally, it is axiomatic that "the interest of a public figure in the purity of his reputation cannot be allowed to obstruct that vital pulse of ideas and intelligence on which an informed and self-governing people depend. It is unfortunate that the exercise of liberties so precious as freedom of speech and of the press may sometimes do harm that the state is powerless to recompense: but this is the price that must be paid for the blessings of a democratic way of life." Edwards, 556 F.2d at 122; see Gertz, 418 U.S. at 342, 94 S.Ct. 2997 ("[W]e have been especially anxious to assure to the freedoms of speech and press that `breathing space' essential to their fruitful exercise.") (internal quotation marks omitted); see also Harte-Hanks Communications, Inc., 491 U.S. at 686, 109 S.Ct. 2678. It is true that, when the media operate under the protection of the actual malice standard (as is the case when the subject of a broadcast is a public official or a public figure), mistakes will inevitably be made and individual reputations will sometimes be sullied. That is regrettable, but inevitable—and hopefully rare. See Ryan, 634 F.2d at 733 ("We recognize that the New York Times standard is a difficult one for libel plaintiffs to meet, and that its application may sometimes produce harsh results.").
Accordingly, because Captain Henry has failed to meet his burden in this case, we affirm the hearing justice's grant of defendants' motions for summary judgment with respect to the libel and slander claims against them (Counts One and Two). See Anderson, 477 U.S. at 252, 256, 106 S.Ct. 2505 ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient * * *. * * * The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.").
Captain Henry's Remaining Claims
Having determined that Captain Henry is a public official and that there is insufficient evidence upon which a rational fact-finder could conclude that defendants acted with actual malice, we turn now to Captain Henry's other claims—viz., Count
These additional claims asserted by Captain Henry must also fail because of the basic principle in the domain of media law that "one may not breathe life into an otherwise doomed defamation claim by re-baptizing it as a different cause of action." Trainor v. The Standard Times, 924 A.2d 766, 769 n.1 (R.I. 2007); see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) ("We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with `actual malice' * * *."); Shay v. Walters, 702 F.3d 76, 83 (1st Cir. 2012) (Selya, J.) ("The Supreme Court has made it pellucid that a failed defamation claim cannot be recycled as a tort claim for negligent or intentional infliction of emotional distress."); Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003) (upholding the dismissal of the plaintiff's emotional distress claim because it was "premised on precisely the same facts as his defamation claim"); Leidholdt v. L.F.P. Inc., 860 F.2d 890, 893 n.4 (9th Cir. 1988) ("An emotional distress claim based on the same facts as an unsuccessful libel claim cannot survive as an independent cause of action[.]"); see also Correllas v. Viveiros, 410 Mass. 314, 572 N.E.2d 7, 13 (1991) ("A privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort."). The United States Supreme Court has stated that this standard "reflects [the Court's] considered judgment that such a standard is necessary to give adequate `breathing space' to the freedoms protected by the First Amendment." Hustler Magazine, Inc., 485 U.S. at 56, 108 S.Ct. 876.
For these reasons, it is our unconditional opinion that, in the instant case, the hearing justice did not err in granting defendants' motions for summary judgment on all counts in the complaint.
This case is a classic example of the venerable maxim: "Dura lex sed lex" (It is a harsh law, but it is the law). While we are confident that we have correctly applied the constitutionally derived principles relative to defamation actions brought by public officials, we are not in the least insensitive to the unfortunate effect on the lives and reputations of real human beings that the application of those principles can sometimes have. Such is the price that some individuals must pay as a result of the daunting burden which public officials must bear when they seek to prevail in a defamation action. Our sympathy for public officials who allege that they are victims of defamation is unfeigned, but our role is to apply the constitutionally derived principles that are operative in this domain. See, e.g., Peterson v. New York Times Co., 106 F.Supp.2d 1227, 1232-33 (D. Utah 2000) ("The court is in no way attempting to trivialize the misfortune that [the plaintiff] has suffered. It takes a good part of one's lifetime to establish a good reputation, and when that hard-earned reputation is tarnished in a mere day by an unfortunate error, one is certain to be left in despair."); see also Saenz v. Playboy Enterprises,
Accordingly, we affirm the judgment of the Superior Court. We remand the record to that tribunal.
Justice Goldberg did not participate.
Captain Henry additionally points to the fact that Mr. Taricani testified at his deposition that the "`cover their tracks'" portion of the story at issue must have been added by a producer to "`juice up'" the story as evidence of reckless disregard for the truth. We disagree. The simple fact that a producer may have added the "`cover their tracks'" language does not reflect a knowledge of the falsity of the statements in the broadcast at issue or a reckless disregard for their truth or falsity; in our opinion, that language simply constituted a reasonable inference based on the information Mr. Taricani obtained from his sources about the involvement of Captain Henry and Captain Antonucci in the parking ticket scandal. See, e.g., Tavoulareas v. Piro, 817 F.2d 762, 796 (D.C. Cir. 1987) (en banc) ("In our view * * * managerial pressure to produce [sensationalistic] stories cannot, as a matter of law, constitute evidence of actual malice."). Moreover, we additionally note that that very minute portion of the broadcast was not directly defamatory with respect to Captain Henry.