THE STATE OF SOUTH CAROLINA
In The Supreme Court
Wayne Elder, Respondent,
The Gaffney Ledger, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Cherokee County
Larry R. Patterson, Circuit Court Judge
Opinion No. 25153
Heard March 22, 2000 - Filed June 19, 2000
Jay Bender and Charles E. Baker, of Baker, Ravenel
and Bender, of Columbia, for petitioner.
Patrick E. Knie, of Spartanburg, and Kenneth L.
Holland, of Gaffney, for respondent.
WALLER, A.J.: We granted certiorari to review the Court of Appeals'
opinion in Elder v. Gaffney Ledger, 333 S.C. 651, 511 S.E.2d 383 (Ct. App.
1999). We reverse.
This is a defamation case. Respondent Wayne Elder, was Chief of Police
for the town of Blacksburg. 1 On May 17, 1995, Petitioner, the Gaffney Ledger
(Newspaper), printed the following in its "What's Your Beef?" 2 column:
Are the drug dealers paying?
I'd like to know what the people think about this. The Chief of the
Blacksburg Police Department knows that these people are selling
drugs and they have been selling them many years and he hasn't
done anything about it. Now I often wonder if the drug dealers are
paying the Chief of Blacksburg. And too, I would like to know why
the Gaffney police have to go over there and work in the police
department and do their work because they work here in Cherokee
County. Don't they have enough money over there to hire
Blacksburg police to do their jobs?
The editor of the paper, Cody Sossamon, made the decision to publish the above
item which was phoned into the Newspaper by an anonymous caller. Although
Sossamon wrote the caption, he testified he did not intend to suggest an answer
to readers. However, Sossamon testified he himself believed drug dealers could
be paying the chief.
After publication of the column, Elder brought this libel action. The jury
awarded him $10,000 in actual damages and $300,000 in punitive damages
The Court of Appeals affirmed.
2 "What's Your Beef?" is an opinion column in which readers are invited
to telephone the newspaper and express their opinion or "tell [the paper] what
[they] think" on an answering machine. Callers need not identify themselves.
3 In light of our holding, we find it unnecessary to address Newspaper's
contention that the phrase "Now I often wonder if the drug dealers are paying
the Chief' is incapable of a defamatory meaning.
The sole issue we need address is whether there was sufficient
evidence of constitutional actual malice to withstand Newspaper's
motion for directed verdict.
In defamation actions involving a "public official" or "public figure," the
plaintiff must prove the statement was made with "actual malice," i.e., with
either knowledge that it was false or reckless disregard for its truth. New York
Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S.
323 (1974). See also Holtzscheiter v. Thomson News, Inc., 332 S.C. 502, 506
S.E.2d 497 (1998)(Toal, J., concurring). Whether the evidence is sufficient to
support a finding of actual malice is a question of law. Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 685 (1989). When
reviewing an actual malice determination, this Court is obligated to
independently examine the entire record to determine whether the evidence
sufficiently supports a finding of actual malice. Miller v. City of West
Columbia, 322 S.C. 224, 471 S.E.2d 683 (1996).
Actual malice is a subjective standard testing the publisher's good faith
belief in the truth of his or her statements. Peeler v. Spartan Radiocasting,
Inc., 324 S.C. 261, 478 S.E.2d 282 (1996). The constitutional actual malice
standard requires a public official to prove by clear and convincing evidence
that the defamatory falsehood was made with the knowledge of its falsity or
with reckless disregard for its truth. New York Times Co. v. Sullivan, supra;
Botchie v. O'Dowd, 315 S.C. 126, 432 S.E.2d 458 (1993). A "reckless disregard"
for the truth, however, requires more than a departure from reasonably prudent
conduct. "There must be sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his
publication." St. Amant v. Thompson, 390 U.S. 727, 731 (1968)(emphasis
supplied). There must be evidence the defendant had a "high degree of
awareness of ... probable falsity." Garrison v. Louisiana, 379 U.S. 64, 74
(1964) (emphasis supplied).
Failure to investigate before publishing, even when a reasonably prudent
person would have done so, is not sufficient to establish reckless disregard. See
St. Amant, supra; Hunt v. Liberty Lobby, 720 F.2d 631, 642 (11th Cir. 1983);
Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (6th Cir. 1982). Actual malice may
be present, however, where one fails to investigate and there are obvious
reasons to doubt the veracity of the informant. St. Amant, supra.
The actual malice standard is not satisfied merely through a showing of
ill will or `malice' in the ordinary sense of the term. Harte-Hanks, 491 U.S. at
666. It is insufficient to show the defendant made an editorial choice or simply
failed to investigate or verify information; there must be evidence at least that
the defendant purposefully avoided the truth. Gaylord Broadcasting v. Francis,
7 S.W.3d 279 (Tex. 1999); ABC, Inc. v. Gill, 6 S.W.3d 19 (Tex. 1999). Erasure
of a tape recording when done as part of a routine practice is not evidence of
actual malice. Peeler v. Spartan Radiocasting, 324 S.C. 261, 478 S.E.2d 282
(1996). Although evidence concerning motive or care may bear some relation
to the actual malice inquiry; however, "courts must be careful not to place too
much reliance on such factors." Harte-Hanks, 491 U.S. at 668.
The evidence relied upon in this case to demonstrate actual malice is as
follows: 1) that Sossamon failed to investigate or verify the information left by
the anonymous caller; 2) that the phone recording of the anonymous caller was
"erased" by Newspaper; 3) that Sossamon pled guilty to manufacturing
marijuana in 1991; and 4) that Sossamon had been "rude" to Chief Elder's wife
on one occasion when she was at the Newspaper to place an ad for her husband.
This evidence is patently insufficient to demonstrate Sossamon in fact
entertained serious doubts as to the truth of the publication. 4
As to the first item, the failure to investigate, while there was expert
testimony that reporters verify the accuracy of news articles, and Sossamon
testified he did not have sufficient evidence to develop a news story that Elder
was being bribed, there was no testimony that the same verification procedures
apply to editorials or opinion columns. In fact, the experts called by Elder did
not write editorials. The only testimony with respect to columns such as
"What's Your Beef?" came from Sossamon who testified that, although some
newspapers have a policy against publishing anonymous items, he knew of a
number which do, in fact, publish such items. Moreover, as noted previously,
a mere failure to investigate is not tantamount to actual malice. St. Amant,
supra. The fact that Sossamon did not investigate the anonymous phone call
a witness who could corroborate the truth of the statement in its answers to
interrogatories constitutes evidence of constitutional actual malice. We fail to
see how a party's failure to list a witness in answers to interrogatories
demonstrates actual malice in the publication of the article. Moreover,
Sossamon was listed as a witness in Newspapers' answers to interrogatories;
he was simply not listed in response to interrogatory number 6.
simply does not demonstrate that he "purposefully avoided" the truth. 5
The Court of Appeals also suggested that the failure of Newspaper to
introduce the tape of the phone call was evidence of the possibility that Editor
manufactured the entire piece. Contrary to the Court of Appeals' insinuation,
there was simply no evidence that Sossamon fabricated the phone call, or that
the tape was non-existent. 6 In relying upon the absence of the tape to
establish evidence of Sossamon's possible motive, the Court of Appeals
effectually switched the burden to Newspaper to introduce the recording. This
was error. See Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977) (burden
to prove his case is always on plaintiff). Given that counsel for Elder was in
possession of a copy of the tape, and its authenticity was not an issue at trial,
we find the Court of Appeals erred in relying upon its absence to demonstrate
an inference of malice. 7
The Court of Appeals also cited the fact that Sossamon had a 1991
conviction for manufacturing marijuana, concluding that he may have been
motivated by his own problems with law enforcement to discredit Elder. In our
view, the Court of Appeals placed undue emphasis on this conviction. There
was no evidence Elder had anything whatsoever to do with Sossamon's arrest;
on the contrary, it appears from the record that Sossamon was arrested by a
Detective Burgess. Moreover, Sossamon repeatedly testified that he owed his
life to the fact that he was arrested, and in fact had called and thanked the
Sheriff who had arrested him. In sum, there was simply no testimony linking
he did not have sufficient information to develop a news story. 511 S.E.2d at
388. This is simply another way of stating he failed to investigate. The fact
that he did not have enough information to transform an editorial/opinion
column into a news story simply does not demonstrate he had substantial doubt
as to its truth.
6 The message was left on what Sossamon described as a "computer
recording." When Sossamon went to retrieve it for Elder the day following the
publication, he was told it had been "killed" off the computer (or recorded over).
Newspaper was subsequently able to retrieve the original message from a
mirror recording, a copy of which was given to counsel for Elder prior to trial.
7 Moreover, this Court has recognized that erasure of a tape recording is
not evidence of actual malice. Peeler, supra.
Sossamon's 1991 arrest to any ill motive toward Chief Elder such that its
relevance in this case is questionable.
With regard to Mrs. Elder's testimony that Sossamon was "rude" to her,
although we agree with the Court of Appeals that evidence of ill will may, in
some circumstances, be relevant to demonstrate motive, we fail to see the
relevance of Mrs. Elder's testimony in this case. The mere fact that Sossamon
spoke to her in a "very smart, rude" manner on one occasion more than a year
prior to the publication of the column is simply irrelevant to demonstrate malice
by Sossamon toward Elder. It is possible Sossamon is generally a rude person,
or was in a bad mood on the day in question, or perhaps has a dislike of Mrs.
Elder. Accordingly, we find Mrs. Elder's testimony irrelevant.
Moreover, even if Sossamon's conviction and his "rudeness" toward Mrs.
Elder are somehow relevant to a determination of "ill will" toward Chief Elder,
they are insufficient to demonstrate the requisite constitutional actual malice
in publishing the item. As noted by the United States Supreme Court, the
actual malice standard is not satisfied merely through a showing of ill will or
"malice" in the ordinary sense of the term. Harte-Hanks, supra, 491 U.S. at
666, 109 S.Ct. at 2685, n. 7 (phrase "actual malice" is unfortunately confusing
in that it has nothing to do with bad motive or ill will). See also Chapin v.
Knight-Ridder, 993 F.2d 1087,1092, n. 5 (4th Cir.1993)("actual malice" does not
refer to "ill will"); Sanders v. Prince, 304 S.C. 236, 403 S.E.2d 640 (1991)(jury
may not impose liability on basis of defendant's hatred, spite, ill will, or desire
to injure as "[i]ll will toward the plaintiff, or bad motives, are not elements of
the New York Times standard"); Beckley Newspapers Corp. v. Hanks,, 389 U.S.
81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967). Although it cannot be said that
evidence concerning motive or care never bears any relation to the actual malice
inquiry, courts should be careful not to place too much reliance on such factors.
Harte-Hanks, supra. "Bad motive or hostility is not what is meant by malice
in the New York Times sense." Pacella v. Milford Radio Corp., 462 N.E.2d 355,
361 (Mass. 1984). Since evidence of ill will is not part of the actual-malice test,
its admission could cause unnecessary jury confusion and arguably restrict the
speech rights of adversaries without commensurate proof that the defendant
knew or suspected a falsehood. See Pendleton v. City of Haverhill, 156 F.3d 57,
65 (1st Cir. 1998) (affirming exclusion of evidence of libel defendant's animus
toward plaintiff on the ground that "[i]n the defamation context, 'malice' does
not relate to the defendant's motive for speaking or even to whether the
defendant made the challenged statement out of ill will"). Even where such
evidence is admitted (as, for example, to show that the defendant had a motive
to lie about the plaintiff), it has been observed that it does not approach a
showing of the mordant unconcern with the truth of a particular statement
which is crucial to the claim of defamation by a public figure. Nat'l Ass'n of
Gov't Employ Inc. v. Central Broadcasting Corp, 396 N.E.2d 996, 1003
Under the facts of this case,'even if we assume Sossamon's conviction and
alleged "rudeness" tend to demonstrate that he in fact held some ill will toward
Chief Elder, those factors far fall short of the requisite clear and convincing
standard of demonstrating he deliberately published "What's Your Beef?" with
a "high degree of awareness of . . . probable falsity." Garrison v. Louisiana,
Finally, Sossamon testified that he believed the information contained in
"What's Your Beef?" could be true because Chief Elder knew some people in
Blacksburg who had been selling drugs for many years and had not done
anything about it, 8 and because Elder had at one time called Sossamon to
advise him that a Newspaper employee had been hanging out with a known
drug dealer. Sossamon took the fact that Chief Elder had "tipped him off" as an
indication that he "could have tipped anyone off." Given this is the only
testimony regarding Sossamon's subjective belief concerning the publication, we
simply cannot say he "purposefully avoided the truth" in printing the column.
Essentially, the evidence of actual malice in this case boils down to
Sossamon's failure to investigate an anonymous phone call prior to publishing
it in a clearly designated editorial/opinion column, 9 and some speculative
testimony that Sossamon could possibly have harbored some ill will toward
9 The fact that the item was published in "What's Your Beef?" militates
against a finding of actual malice. The column was clearly labeled as an
editorial/opinion column, and plainly advised readers they could call the
newspaper and "get it off your chest" without leaving their name. The "form
and content of the story are relevant not only to the falsity and neutral
reportage questions, but also to the question of actual malice." Harte-Hanks,
supra, 491 U.S. at 695, 109 S.Ct. at 2699 (Blackmun, J., concurring).
Chief Elder. This is patently insufficient to establish clear and convincing
evidence of constitutional actual malice. Accord Journal Publishing Co. v.
McCullough, 743 So.2d 352 (Miss. 1999) (evidence the defendant newspaper
was opposed to plaintiff politically, had published unfavorable stories about him
in the past, had been tipped off by the plaintiff's political enemy, newspaper
reporter knew article would damage plaintiff's reputation, reporter did not
verify information through at least two sources despite his knowledge it was
good journalistic practice to do so, and there was evidence reporter had lied
about trying to contact plaintiff's office before printing his story was insufficient
to satisfy actual malice standard as it amounted to no more than evidence of ill
will). Accordingly, we hold Elder failed to meet his burden of proof, and the
Court of Appeals' opinion is therefore
FINNEY, C.J., MOORE, and TOAL, JJ., concur. BURNETT, J., dissenting in a
JUSTICE BURNETT (dissenting): I respectfully dissent. In
my opinion, Chief Elder presented clear and convincing evidence of
Sossamon's actual malice in publishing the anonymous commentary in The
The constitutional standard for proving actual malice is well
established. In N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964), the
United States Supreme Court held "[t]he constitutional guarantees require,
we think, a federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with 'actual malice' - that is, with
knowledge that it was false or with reckless disregard of whether it was false
or not." " 'Reckless disregard,' it is true, cannot be fully encompassed in one
infallible definition. Inevitably its outer limits will be marked out through
case-by-case adjudication, as is true with so many legal standards for judging
concrete cases. . .". St. Amant v. Thompson, 390 U.S. 727, 730-731 (1968).
". . . [R] eckless conduct is not measured by whether a reasonably
prudent man would have published, or would have investigated before
publishing." Id. at 731; see also Peeler v. Spartan Radiocasting Inc., 324
S.C. 261, 266, 478 S.E.2d 282, 284 (1996) ("[t]o establish recklessness, there
must be an extreme departure from the standards of investigation and
reporting ordinarily adhered to by responsible publishers."). Nevertheless,
"[t]he defendant in a defamation action brought by a public official cannot,
however, automatically insure a favorable verdict by testifying that he
published with a belief that the statements were true. The finder of fact
must determine whether the publication was indeed made in good faith.
Professions of good faith will be unlikely to prove persuasive, for example,
where a story is . . . based wholly on an unverified anonymous telephone call. .
.". St. Amant, 390 U.S. at 732 (italic added). 1d When reporting the
allegations of a third party, "recklessness may be found where there are
obvious reasons to doubt the veracity of the informant or the accuracy of his
Holtzscheiter v. Thomson News Inc., 332 S.C. 502, 506 S.E.2d 497 (1998)
(Toal, J., concurring).
On appeal, this Court has "a constitutional duty to 'exercise
independent judgment and determine whether the record establishes actual
malice with convincing clarity'." Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 659 (1989), citing Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 514 (1984); see also Peeler v.
Spartan Radiocasting, Inc., 324 S.C. 261, 478 S.E.2d 282 (1996) (de novo
review is conducted to determine if there is clear and convincing evidence on
issue of actual malice). "Clear and convincing evidence is that degree of
proof which will produce in the mind of the trier of facts a firm belief as to
the allegations sought to be established. . .; it does not mean clear and
unequivocal." Id. S.C. at 265, S.E.2d at 286, citing Middleton v. Johnston,
273 S.E.2d 800, 803 (Va. 1981).
In my opinion, de novo review of the record demonstrates clear
and convincing evidence of actual malice. Sossamon's claim he believed the
anonymous recording was true because Chief Elder had previously notified
him a newspaper employee was "hanging out" with a drug dealer who was
going to be arrested does not support the recording's assertion Chief Elder
was taking bribes from drug dealers. In fact, it suggests the contrary: that
Chief Elder was actively arresting drug dealers. In that the United States
Supreme Court has recognized the danger inherent in relying on anonymous
sources, St. Amant, 390 U.S. 727, Sossamon's failure to take any steps to
corroborate the accuracy of the recording suggests a purposeful avoidance of
the truth tantamount to reckless disregard for the truth. Harte-Hanks, 491
U.S. at 692 (" [a]lthough failure to investigate will not alone support a finding
of actual malice, purposeful avoidance of the truth is in a different
category.") (internal citations omitted).
Moreover, Sossamon's attitude towards Chief Elder's wife prior
to the publication of the recording indicates a degree of apparent hostility
towards Chief Elder. Further, notwithstanding his claims to the contrary,
Sossamon's own arrest and conviction for manufacturing marijuana are
evidence of his motive for publishing the recording without regard to
whether its assertions were true. Id. at 668 (italic added) ("[a]lthough courts
must be careful not to place too much reliance on such factors, a plaintiff is
entitled to prove the defendant's state of mind through circumstantial
evidence, and it cannot be said that evidence concerning motive or care never
bears any relation to the actual malice inquiry.") (internal citations omitted).
The First Amendment prevents the threat of litigation from
inhibiting the freedom of the press. Nonetheless, its protection is not
without limit. Where, as here, a newspaper heedlessly and falsely accuses a
public official of a crime solely on an unsubstantiated anonymous recording,
constitutional protections cease. Accordingly, I would affirm, in result, the
decision of the Court of Appeals. 2d
protection. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1996) (the First
Amendment does not shield an assertion simply because it is characterized
as an opinion). The phrase "[n]ow I often wonder if the drug dealers are
paying the Chief of Blacksburg" is clearly an assertion of an objective fact
and is actionable.