THE STATE OF
In The Supreme Court
Tom Anderson, Respondent,
The Augusta Chronicle, Morris Communications, Inc., Petitioner.
ON WRIT OF CERTIORARI
Costa M. Pleicones, Circuit Court Judge
Opinion No. 26031
Heard November 17, 2004 - Filed August 22, 2005
David E. Hudson, of
Hull, Towill, Norman, Barrett, & Salley, of Augusta, and James M. Holly, of Hull, Norman, Barrett, & Salley of Aiken, for Petitioner.
Douglas Kosta Kotti, of
Columbia, for Respondent.
Jay Bender, of Baker, Ravenel & Bender, of
Columbia, for Amicus Curiae.
JUSTICE TOAL: This is a libel case brought by a public figure against a
newspaper. The trial judge granted a motion for directed verdict for
Petitioner, the Augusta Chronicle (the Chronicle). The court of appeals reversed.
November 1996, Respondent Tom Anderson (Anderson) lost an election for a seat in
South Carolina House District 84. The following November, District 84 had
a special election, and
1997, Chad Bray (Bray), a reporter for the Chronicle, called
6, 1997, just days after Bray interviewed
On October 1, 1997, five days after Anderson sent the documentation of his appraisal work and a month before the special election, the Chronicle published the following editorial entitled, “Let the Liar Run” by Phil Kent (Kent):
Clearwater Democrat Tom Anderson, running in November’s court-ordered special election for
South Carolina’s House District 84 seat, has been exposed as a liar.
He told this newspaper he was called away to National Guard duty in the last weeks of the 1996 election, his first race against incumbent state Rep. Roland Smith, R-Langley. (
Anderson lost by a decisive margin.)
It turns out, however, the state Guard has no record of
Anderson ever serving - either then or any other time.
State GOP director Trey Walker, saying
Anderson has dishonored himself and the National Guard, demands that the Democrat withdraw from the race. Walker’s right about the dishonor, but what about the withdrawal?
Anderson is the best the Democrats can come up with, they still have every right to run him. There’s nothing in the election rules that says a political party can’t nominate for public office a candidate who, in effect, lies on his resume.
We are confident that an informed electorate won’t vote into office a proven prevaricator. After all, he doesn’t even have the long robes of one of Al Gore’s Buddhist monks to hide behind!
judge ruled that
This Court granted certiorari on the following issue:
Did the court of appeals err in reversing the trial court’s order directing a verdict in favor of the Chronicle?
Standard of Review
When reviewing an order granting a directed verdict, this Court must view the facts in the light most favorable to the nonmoving party. Elam v. South Carolina Dep’t of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004) (citing Strange v. South Carolina Dep’t of Highways & Pub Transp., 314 S.C. 427, 445 S.E.2d 439 (1994)).
The Chronicle argues that the court of appeals erred in reversing the directed verdict because there is no evidence that the article was published with actual malice. We disagree.
addition to the common law elements of defamation, a public official has the
constitutional burden of proving that the defendant published the alleged
defamatory material with “actual malice.” New York Times v.
“actual malice,” the court must use a subjective standard to test the “publisher’s
good faith belief of the truth of his or her statements.” Peeler v.
Spartan Radiocasting, Inc., 324 S.C. 261, 266, 478 S.E.2d 282, 284
(1997). In addition, the plaintiff must provide evidence the defendant had
a “high degree of awareness of . . . probable falsity.” Elder v. Gaffney
Ledger, 341 S.C. 108, 114, 533 S.E.2d 899, 902 (2000) (citing Garrison v.
Reckless Disregard of the Truth
central issue of this case is whether any evidence exists tending to prove that
The U. S.
Supreme Court has recognized that failure to investigate, alone, is insufficient
to support a finding that a defendant “recklessly disregarded” the falsity
of a published article. See New York Times, 376
Nevertheless, the Supreme Court has
recognized that a plaintiff will rarely find success in proving awareness that a
statement is false “from the mouth of a defendant himself.” Herbert
v. Lando, 441
The record in this case is replete
with circumstantial evidence of bad faith on the part of
Second, on September 26
Of particular interest is the fact
A year ago, and shortly before the November elections, Anderson, a semi-retired insurance claims adjuster, was asked by a group of independent insurance companies to help process claims from hurricane damage in North Carolina. A large number of the claims were made under the National Flood Insurance Program, which
after I asked him why he did not campaign before the 1996 election). Anderson referred to in his conversations with me and which he told me he gave to another reporter.(He not only furnished that information last year, but again this past June
Anderson also introduced into
evidence a clip from the Aiken Standard published on September 27, 1996
headlined “Candidate leaves area to help Fran victims.” The article
Accordingly, we hold that
circumstantial evidence exists as to whether
foregoing reasons, we affirm the court of appeals’ decision holding that the
evidence, viewed in the light most favorable to
MOORE, WALLER, JJ., and Acting Justice Marion D. Myers, concur. BURNETT, J., concurring in a separate opinion.
JUSTICE BURNETT: I concur in the majority’s opinion and result; however, I write separately to address the serious questions this case raises about the responsibilities of journalists to the public and their audiences.
Were we to hold the egregious facts of this case are insufficient to support a reasonable jury finding that Anderson has shown actual malice, we would essentially foreclose all liability for defamers against public officials.
The Chronicle discounts the evidence in arguing a failure to investigate alone, is insufficient for a finding that a defendant “recklessly disregarded” the falsity of a published article. The Chronicle ignores a line of Supreme Court jurisprudence guiding state and lower federal courts in determining what evidence is relevant to a finding of actual malice. The Supreme Court has concluded that, although a failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in an entirely different category. See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.E.2d 686 (1964). A reasonable jury could certainly infer that Anderson’s claims of inaccuracy coupled with the circumstantial evidence outlined in the majority opinion evinces purposeful avoidance of the truth. See Harte-Hanks, 491 U.S. at 692-93, 109 S.Ct. at 2698, 105 L.E.2d at 562. To hold that a reasonable jury could find evidence of actual malice in this case would not impose, as the Chronicle suggests, a duty on a member of the press to avoid a colleague’s word while investigating a story. To the contrary, allowing a jury to determine whether actual malice has been shown in the face of the considerable circumstantial evidence in this case, strikes a balance between protecting an individual’s reputation and the First Amendment’s protection of free speech.
The right of a free press is not absolute in a society that demands social responsibility and personal integrity. Freedom itself is conditional upon the recognition of a higher social duty to pursue truth and justice. A publication that systematically panders to sensationalism and degradation at the expense of the truth presents a cost too high for a free society to tolerate.
I believe freedom of the press is one of the greatest safeguards of liberty. This safeguard is grounded in democratic ideals promoting free thought and vigorous debate. When deliberate deception is elevated to perceived truth, the very values a free press seeks to preserve are compromised. In the interests of justice, we will not allow a publication to go so unchecked as to promote the tyrannical imposition of false and misleading information—the very concern our forefathers sought to eliminate in demanding the press be free. Our liberty cannot be guarded but by a free and independent press. A reckless and deceptive media poses the greatest danger to this freedom we so cherish.
For the foregoing reasons, I agree the evidence, viewed in the light most favorable to Anderson, is sufficient to submit the question of actual malice to the jury.
 Morris Communications, the codefendant, does business as The Augusta Chronicle.
 The special election was ordered as a result of redistricting.
 On that same day, The Aiken Standard, a rival local
newspaper, published an article entitled “Democrat responds to misinformation,”
which called the Chronicle’s stories about
 The documents included
 This test has been supported by virtue of the doctrine of stare decisis in several cases following Sullivan: Gertz, 418 U.S. at 325; Butts, 388 U.S. at 130; Harte-Hanks Comm., 491 U.S. at 666; Fleming v. Rose, 350 S.C. 488, 567 S.E.2d 857 (2002); Elder v. Gaffney Ledger, 341 S.C. 108, 533 S.E.2d 899 (2000); Peeler v. Spartan Radiocasting, Inc., 324 S.C. 261, 478 S.E.2d 282 (1997).