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TIME, INC. v. PAPE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Argued December 16, 1970
Decided February 24, 1971
In a discussion of "police brutality and related private violence" in its 1961 Report, the Civil Rights Commission mentioned the case of Monroe v. Pape, 365 U.S. 167 , and listed some of the allegations of Monroe's civil rights complaint filed against certain Chicago policeman headed by Deputy Chief of Detectives Pape. In an article about the Report, Time magazine quoted from a summary of the complaint, without indicating that the charges were Monroe's and not the independent findings of the Commission. Pape sued the petitioner publisher for libel. The Court of Appeals reversed the District Court's grant of Time's motion for summary judgment, holding that there had to be a trial on the question of whether Time's failure to make clear that it was reporting no more than allegations showed "actual malice" (knowledge that the information was false or reckless disregard of whether it was false or not) under the rule of New York Times Co. v. Sullivan, 376 U.S. 254 . At the trial the author of the article and the researcher admitted awareness that the wording of the Report had been significantly altered but insisted that its real meaning had not been changed. The District Court granted Time's motion for a directed verdict at the close of the evidence, but the Court of Appeals reversed, holding that the jury should determine whether the omission of the word "alleged" showed "actual malice." Both courts agreed that Pape was a "public official" and that the article concerned his "official conduct." Held: In the circumstances of this case the magazine did not engage in a "falsification" sufficient in itself to sustain a jury finding of "actual malice." Pp. 284-292.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BLACK, J., filed an opinion concurring in the judgment, in which DOUGLAS, J., joined, ante, p. 277. HARLAN, J., filed a dissenting opinion, post, p. 293.
Don H. Reuben argued the cause for petitioner. With him on the briefs were Harold R. Medina, Jr., and Lawrence Gunnels.
Patrick W. Dunne argued the cause for respondent. With him on the brief were Robert J. Nolan and Edward J. Hladis.
MR. JUSTICE STEWART delivered the opinion of the Court.
In November 1961, the United States Commission on Civil Rights issued the fifth volume of its Report for that year, a document entitled Justice. A part of Justice was devoted to a study of "police brutality and related private violence," and contained the following paragraph:
Pape sued Time for libel in the United States District Court for the Northern District of Illinois, there being diversity of citizenship. Time moved to dismiss the suit on the ground that the article was fair comment on a government report and therefore privileged under Illinois law; the District Court granted the motion, but the Court of Appeals for the Seventh Circuit reversed. 318 F.2d 652. After remand, this Court decided New York Times Co. v. Sullivan, 376 U.S. 254 , and on the basis of that decision the District Court granted Time's motion for summary judgment. On appeal, the Court of Appeals again reversed, holding that there must be a trial on the question of whether Time's failure to make clear that it was reporting no more than allegations showed "actual malice." 354 F.2d 558.
At the trial, Pape called the policemen who had participated in the Monroe raid. They all testified that nothing resembling the events described in the Time [401 U.S. 279, 283] article as findings of the Commission had occurred. * There was also extensive testimony from the Time staff member who had written the article and from the "researcher" who had been responsible for checking its factual accuracy. The author testified that he had written the article on the basis of the Justice report itself, a Commission press release accompanying the report, and a New York Times news story describing Justice. He conceded that he knew the meanings of the words "alleged" and "complaint," but denied that the Time article was false, given the full context of the Justice report. The researcher testified that she had consulted several newspaper articles describing Monroe's claims about the raid, and several articles describing Pape's previous career. She said that she had also read two dispatches from Time's Chicago correspondent, one of them describing Monroe's charges without comment as to their truth and the other asserting as fact that the events had actually occurred. She conceded that she was aware of the omission of the word "alleged" in the Time article, but said that she believed the article to have been true as written.
At the close of the evidence, the District Court granted Time's motion for a directed verdict, 294 F. Supp. 1087, and Pape appealed for a third time. The Court of Appeals again reversed the District Court, holding that it was for the jury to determine whether Time's omission of the word "alleged" showed "actual malice." 419 F.2d 980. We granted certiorari in order to decide the constitutional issue presented under the First and Fourteenth Amendments. 397 U.S. 1062 . [401 U.S. 279, 284]
The District Court and the Court of Appeals were in agreement that the plaintiff Pape was a "public official" by virtue of his position as Deputy Chief of Detectives of the Chicago Police Department, and that the charges contained in the Monroe complaint, the Justice report, and the Time story concerned his "official conduct." The two courts differed only in their application of the rule of New York Times Co. v. Sullivan, 376 U.S. 254 , which "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." Id., at 279-280.
The only question before us, therefore, is whether the Court of Appeals correctly applied this constitutional rule to the facts of this case in reversing the directed verdict for the defendant. Inquiries of this kind are familiar under the settled principle that "[i]n cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will re-examine the evidentiary basis on which those conclusions are founded." Niemotko v. Maryland, 340 U.S. 268, 271 . Cf. Napue v. Illinois, 360 U.S. 264, 271 -272. And in cases involving the area of tension between the First and Fourteenth Amendments on the one hand and state defamation laws on the other, we have frequently had occasion to review "the evidence in the . . . record to determine whether it could constitutionally support a judgment" for the plaintiff. New York Times, supra, at 284-285; Beckley Newspapers v. Hanks, 389 U.S. 81, 83 ; St. Amant v. Thompson, 390 U.S. 727 ; Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 11 .
The Time news article reported as a charge by the Commission what was, in its literal terms, a description [401 U.S. 279, 285] by the Commission of the allegations in a complaint filed by a plaintiff in a civil rights action. This situation differs in a number of respects from the conventional libel case. First, the publication sued on was not Time's independent report of the Monroe episode, but its report of what the Civil Rights Commission had said about that episode. Second, the alleged damage to reputation was not that arising from mere publication, but rather that resulting from attribution of the Monroe accusations to an authoritative official source. Finally, Time made no claim of good-faith error or mere negligence. Both the author of the article and the researcher admitted an awareness at the time of publication that the wording of the Commission Report had been significantly altered, but insisted that its real meaning had not been changed.
The Court of Appeals concluded that it was obvious that the omission of the word "allegation" or some equivalent was a "falsification" of the Report. Since the omission was admittedly conscious and deliberate, the only remaining question in the court's view was whether there had been "malice" in the sense of an "intent to inflict harm through falsehood." Such an intent, the court thought, might reasonably be inferred from the very act of deliberate omission, and the issue of malice was consequently one for the jury.
Analysis of this kind may be adequate when the alleged libel purports to be an eyewitness or other direct account of events that speak for themselves. For example, in St. Amant, supra, it made good sense to separate the question of the truth of St. Amant's charges of corruption and official misbehavior from the question of whether he had an adequate basis to believe them true. But a vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said rather than of what anybody did. Indeed, [401 U.S. 279, 286] perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like. The question of the "truth" of such an indirect newspaper report presents rather complicated problems.
A press report of what someone has said about an underlying event of news value can contain an almost infinite variety of shadings. Where the source of the news makes bald assertions of fact - such as that a policeman has arrested a certain man on a criminal charge - there may be no difficulty. But where the source itself has engaged in qualifying the information released, complexities ramify. Any departure from full direct quotation of the words of the source, with all its qualifying language, inevitably confronts the publisher with a set of choices.
The Civil Rights Commission's Justice report is a typical example of these problems. The underlying story that gave the report newsworthiness was the picture of police violence against citizens. Many of the incidents included were quite clearly designed to shock, anger, and alarm the reader, indeed to move him into a position of support for specific legislative recommendations of the Commission. Yet the attitude of the Commission toward the factual verity of the episodes recounted was anything but straightforward.
First, the episodes were presented in the context of a report which from the first page purported to be dealing with a problem of unquestionable reality and seriousness:
Turning the page, the reader was confronted with another heading in capitals, "PATTERNS OF POLICE BRUTALITY," and then the descriptions of the various incidents began. Each had an italicized heading (e. g., "The killing of a Negro in Georgia: 1943") followed by an account giving both sides of the story and carefully describing all facts as "alleged" or using direct quotations. The tone of total neutrality as to the truth or falsity of the claims of brutality was frequently marred, however, by remarks that appeared to indicate the Commission's unexpressed views. At the end of a description entitled "The killing of a Negro in Georgia: 1958," for example, the report said, "[n]o local disciplinary or criminal action was taken against any of the officers involved. The attitude of local authorities toward police was protective in this and several other cases of alleged brutality that occurred within a brief period . . . ." Id., at 11.
The description of the Monroe incident bore the italicized title: "Search, seizure, and violence: Chicago, 1958." Unlike the reports of the other incidents, however, this report limited itself to the summary of a plaintiff's complaint in a lawsuit, as indicated at the outset of this opinion. No attempt was made to give any other version [401 U.S. 279, 289] of the story, and the next report ("The killing of a Negro in Cleveland: 1959") followed immediately after the end of the quotation.
In a chapter entitled "Conclusions," the Commission set forth its findings and recommendations. These included a finding that "police brutality by some State and local officers presents a serious and continuing problem in many parts of the United States. Both whites and Negroes are the victims, but Negroes are the victims of such brutality far more, proportionately, than any other group in American society." The recommendations included proposals for a grant-in-aid program to improve the quality of state and local police forces and for passage of a federal statute outlawing illegal police violence. Id., at 109-112. Since the series of incidents described earlier in the report was the only evidence the Commission presented in support of its findings and recommendations, there was a logically inevitable implication that the Commission must have believed that the incidents described had in truth occurred.
In light of the totality of what was said in Justice, we cannot agree that, when Time failed to state that the Commission in reporting the Monroe incident had technically confined itself to the allegations of a complaint, Time engaged in a "falsification" sufficient in itself to sustain a jury finding of "actual malice." The author of the Time article testified, in substance, that the context of the report of the Monroe incident indicated to him that the Commission believed that the incident had occurred as described. He therefore denied that he had falsified the report when he omitted the word "alleged." The Time researcher, who had read newspaper stories about the incident and two reports from a Time reporter in Chicago, as well as the accounts of Pape's earlier career, had even more reason to suppose that the Commission took the charges to be true. [401 U.S. 279, 290]
Time's omission of the word "alleged" amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities. The deliberate choice of such an interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of "malice" under New York Times. To permit the malice issue to go to the jury because of the omission of a word like "alleged," despite the context of that word in the Commission Report and the external evidence of the Report's overall meaning, would be to impose a much stricter standard of liability on errors of interpretation or judgment than on errors of historic fact.
New York Times was premised on a recognition that, as Madison put it, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 J. Elliot's Debates on the Federal Constitution 571 (1876). With respect to errors of fact in reporting events, we said in New York Times:
In certain areas of the law of defamation, New York Times added to the tort law of the individual States a constitutional zone of protection for errors of fact caused by negligence. The publisher who maintains a standard of care such as to avoid knowing falsehood or reckless disregard of the truth is thereby given assurance that those errors that nonetheless occur will not lay him open to an indeterminable financial liability. This protection would not exist for errors of interpretation were the analysis of the Court of Appeals to be adopted, for once a jury was satisfied that the interpretation was "wrong," the error itself would be sufficient to justify a verdict for the plaintiff.
In St. Amant v. Thompson, supra, at 731, we said:
We would add, however, a final cautionary note. Nothing in this opinion is to be understood as making the word "alleged" a superfluity in published reports of information damaging to reputation. Our decision today is based on the specific facts of this case, involving as they do a news report of a particular government publication that purported to describe the specific grounds for perceiving in 1961 "a serious problem throughout the United States." "Neither lies not 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 v. Thompson, supra, at 732.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
[ Footnote * ] On January 24, 1963, after a jury finding of liability, judgment was entered against Pape in the civil rights suit brought against him by Monroe. The jury awarded Monroe damages of $8,000. Pape did not appeal, and the judgment was satisfied. [401 U.S. 279, 293]
MR. JUSTICE HARLAN, dissenting.
I would affirm the judgment of the Court of Appeals, essentially for the reasons stated in Judge Duffy's opinion for that court. The treatment of this case by our Court, however, prompts me to venture these additional comments.
I fully agree with the rule first enunciated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), that restricts the liability of those who utter defamatory falsehoods regarding public officials. We there recognized that because "erroneous statement is inevitable in free debate," id., at 271, "neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct." Id., at 273. But these considerations did not persuade us to rule that the Constitution grants absolute immunity to everyone, be it the news media or anyone else, who libels a public official, or to conclude that the usual processes of law are inadequate for dealing with this kind of litigation. Rather, we decided that the substantial First Amendment interests implicated in any libel suit of this sort would be adequately served by a constitutional rule that subjects such a statement to the sanctions of the common law of libel only where it was uttered "with `actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 280.
The step taken today, whereby this Court undertakes to judge, "on the specific facts of this case," ante, at 292, whether a jury could reasonably find that Time magazine's characterization of the Commission's report was sufficiently inaccurate to permit the concomitant finding that it was published with "malice," is, in my judgment, not warranted.
I can perceive no rational basis for distinguishing this case from one in which a newspaper or an individual seeks to have this Court review the record upon which a properly instructed jury found liability, where evidence [401 U.S. 279, 294] sufficient to support its verdict exists, and where these matters have been reviewed by a court of appeals applying correct legal standards. As I see things, the Court identifies no such distinguishing feature about this case.
While it is true, of course, that this Court is free to re-examine for itself the evidentiary bases upon which rest decisions that allegedly impair or punish the exercise of Fourteenth Amendment freedoms, this does not mean that we are of necessity always, or even usually, compelled to do so. Indeed, it is almost impossible to conceive how this Court might continue to function effectively were we to resolve afresh the underlying factual disputes in all cases containing constitutional issues. Nor can I discern in those First Amendment considerations that led us to restrict the States' powers to regulate defamation of public officials any additional interest that is not served by the actual-malice rule of New York Times, supra, but is substantially promoted by utilizing this Court as the ultimate arbiter of factual disputes in those libel cases where no unusual factors, such as allegations of harassment or the existence of a jury verdict resting on erroneous instructions, cf. New York Times, supra, are present. While I am confident that the Court does not intend its decision to have any such broad reach, I fear that what is done today may open a door that will prove difficult to close.
Having determined that the court below properly defined the quality of proof required of Pape by New York Times and that it applied the correct standard of review in passing upon the trial judge's decision to grant a directed verdict - determinations that I do not think my Brethren dispute - I would stop the inquiry at this point and affirm the judgment of the Court of Appeals. [401 U.S. 279, 295]