Yorker reason to doubt the article as a whole, the Ninth Circuit also suggested that the New Yorker may have had evidence that Malcolm was "fiddling" with quotations, and that this may have alerted it to problems both with the "sex, women, fun" quotation and with the article as a whole. The Ninth Circuit additionally held that if the New Yorker believed that conversations were not on tape, it could have asked her to produce her notes as verification. The court stated, "had The New Yorker produced evidence that it took these steps and then concluded (even unreasonably) that the quotations were accurate, it would have been entitled to summary judgment." Masson v. New Yorker, 960 F.2d at 901. Having been presented with evidence that the New Yorker knew that the "sex, women, fun" quotation was not on tape, conducted a limited investigation into the accuracy of one quotation, and concluded that the quotation was accurate, the jury apparently credited the testimony in finding that the New Yorker did not act with knowledge of falsity or reckless disregard of falsity.
In sum, it appears from the jury's finding of no liability on this quotation that in its view, neither the knowledge that Malcolm was editing quotations nor the knowledge that that quotation was not on tape gave the New Yorker knowledge of falsity or reckless disregard of truth or falsity. It likewise appears that in the jury's view, nothing that occurred prior to publication, including the fact-checking incident or Brosnahan's call to the New Yorker, constituted proof by clear and convincing evidence that the New Yorker knew that quotations were false or acted with reckless disregard as to the falsity of quotations.
4. Independent Review
Upon its independent review of the evidence, the Court finds that the New Yorker neither knew that the quotations were false, nor acted with reckless disregard as to falsity. The Court saw no evidence at trial that would support the scenarios envisioned by the Ninth Circuit following the fact-checking incident. There was no evidence that Franklin developed doubts about the accuracy of the article as a whole, nor was there evidence that the New Yorker suspected falsity and yet deliberately shut its eyes to the possibility. To the extent that the Court is bound by the jury's credibility determinations, Newton v. National Broadcasting Co., 930 F.2d at 672, the Court believes that the jury must have found Franklin a more credible witness than plaintiff. And to the extent that its own credibility determinations are relevant, id., the Court finds that Franklin was an extremely credible witness. Franklin's version is supported by the evidence. For example, the telephone records indicate that the conversation took nearly forty-five minutes, which was much closer to Franklin's estimate of time. Her version of events comports with the policies set forth in the fact-checker's bible, in that she checked facts contained within quotations and not quotations themselves. The galleys illustrate that Franklin made a number of factual corrections, not all of which were to plaintiff's quotations. Thus, although the fact-checking conversation as described by plaintiff may have given rise to doubts about Malcolm's reporting, the Court finds the conversation as more believably described by Franklin did not give the New Yorker obvious reasons to doubt Malcolm.
The Court also finds that the New Yorker's knowledge that Malcolm edited her quotations, as well as its knowledge that the "sex, women, fun" quotation and the "intellectual gigolo" quotation were in Malcolm's notes rather than on tape, did not give rise to knowledge of falsity or reckless disregard of truth or falsity with respect to those quotations. The New Yorker presented evidence that notes were considered as trustworthy as tapes. It also presented evidence that editing quotations was an accepted practice at the New Yorker. Finally, the Court finds that there was no evidence with respect to the remaining quotations. Accordingly, in its independent review of the evidence, the Court concludes that plaintiff did not meet his burden of showing by clear and convincing evidence that the New Yorker acted with knowledge of falsity or reckless disregard as to truth or falsity. The Court will therefore enforce the jury's answer to Special Verdict Question 7.
B. Awareness of Defamatory Meaning
The Court will now address plaintiff's arguments regarding awareness of defamatory meaning. In his Motion for Partial New Trial, or in the Alternative, for New Trial, plaintiff argues that the Court erred in requiring him to show that the defendants were aware of the defamatory meaning of the challenged quotations. In the reply to his motion, plaintiff argues alternatively that the Court erred in failing to include an instruction regarding reckless disregard of defamatory meaning. Both Malcolm and the New Yorker argue that the awareness of defamatory meaning was properly made an element of this case, but that plaintiff should have been required to prove awareness by clear and convincing evidence. The New Yorker additionally argues that there was no evidence of reckless disregard of awareness of defamatory meaning on the part of the New Yorker, and that plaintiff waived his objection to the Court's failure to instruct on reckless disregard.
1. Correctness of Awareness Instruction
The question of awareness of defamatory meaning was briefed, argued, and considered before and during the trial, and little has been added by the post-trial briefs. However, the Court will readdress the issue. Based on the same authorities the Court considered before, the Court reaffirms its finding that awareness of defamatory meaning is properly an element of this case.
a. Pre-Trial Determination
When the Court first indicated that it planned to instruct the jury on awareness of defamatory meaning as an element of plaintiff's defamation claims in its May 6, 1993 Partial Tentative Ruling, it relied on a number of grounds. The Court noted that no California case made the defendant's awareness of defamatory meaning an element of the case. However, it looked to BAJI 7.04, which was formulated by a well-regarded committee of California lawyers and judges. That model instruction states that a plaintiff must show that a defendant "knew that the statement was false and defamed plaintiff." The Court recognized that BAJI was not binding authority, but accepted it as highly persuasive. The Court also noted that the Ninth Circuit adopted a requirement of awareness of defamatory meaning in Newton v. National Broadcasting Co., 930 F.2d at 680. The Court additionally Looked to the Seventh Circuit. That court has likewise held that a plaintiff must establish the defendant's awareness of defamatory meaning when the statements at issue are not defamatory on their face.
Woods v. Evansville Press Co., 791 F.2d 480, 486-87 (7th Cir. 1986); Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309 (7th Cir. 1988). The Court also relied on a law review article which persuasively argued that such an element is required. M. Franklin and D. Bussel, The Plaintiff's Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary L. Rev. 825 (1984).
In its May 6, 1993 Partial Tentative Ruling, the Court indicated that the element had to be proven by clear and convincing evidence. On May 20, 1993, the Court issued another Tentative Ruling. There, the Court ruled that based on California law, the appropriate standard of proof was proof by a preponderance of the evidence.
Based on its determination, the Court instructed the jury as follows:
The third element that Mr. Masson must prove by a preponderance of the evidence, is that the defendant was aware at the time of publication of the false, defamatory meaning reasonably communicated by one or more of the challenged quotations.
Jury Instructions at p. 22.
The Court will now review its determination that awareness of defamatory meaning is an element of a libel case. The first question is whether the element of awareness is required by California law. Although the court initially determined that state law compelled such an element, the Court now decides for reasons set forth below that awareness of defamatory meaning is an element of constitutional law rather than of state law. Thus, California law is not relevant to the Court's consideration.
Plaintiff argues that awareness is not a part of the constitutional jurisprudence of defamation. He contends that this requirement has not been imposed in any constitutional case. In oral argument, plaintiff cited to Justice White's concurrence in Greenbelt Cooperative Pub. Asso. v. Bresler, 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (1970) to argue that there was no awareness requirement. In that case, plaintiff sued a newspaper which had used the word "blackmail" in connection with plaintiff's efforts to obtain zoning variances when the newspaper knew the plaintiff had not committed the crime of blackmail. The Supreme Court reversed the trial court, which had defined malice to a jury as "spite, hostility or deliberate intention to harm." In conducting its independent review of the evidence, the Supreme Court held that the word "blackmail" was not libelous in the circumstances of the case. The Supreme Court noted, "It is simply impossible to believe that a reader who reached the word "blackmail" . . . would not have understood exactly what was meant. . . . No reader could have thought that [defendants] wore charging [plaintiff] with the commission of a criminal offense." Id. at 14. The Supreme Court held that "to permit the infliction of financial liability upon [defendants] would subvert the lost fundamental meaning of a free press."
Justice White concurred in the result, but argued that the New York Times protection should not "be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning." Id. at 22. Justice White stated, "I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstood if they are by the ordinary reader of their publications." Id. at 23. However, Justice White's concurrence, which would impose a standard by which media defendants would be liable regardless of their intent, is not the law, and no other member of the Supreme Court joined in that opinion.
Moreover, this Court finds such a requirement in the Ninth Circuit's holding in Newton v. National Broadcasting Co., 930 F.2d 662 (9th Cir. 1990) as well as in the holdings of the Seventh Circuit in Woods v. Evansville Press Co., 791 F.2d 480 (7th Cir. 1986) and Saenz v. Playboy Enterprises, Inc., 841 F.2d 1309 (7th Cir. 1988).
The Ninth Circuit's holding in Newton requires some discussion. In that case, entertainer Wayne Newton sued the National Broadcasting Co. ["NBC"] and several broadcast journalists after they aired a report about Newton's relationship with the Mafia and his purchase of a casino. A Las Vegas jury found that the report defamed Newton and awarded him compensatory and punitive damages. The trial court upheld the jury's liability finding and punitive damages award, but reduced the actual damages award. The trial court held that the story created the impression that plaintiff, faced with financial problems, called a Mafia friend who helped him fund his purchase of a casino in exchange for a hidden interest in the venture. The trial court held that even if the defendants "unintentionally left the impression" that Newton's purchase was funded in part by organized crime, they "should have foreseen" that meaning would be communicated to others. 930 F.2d at 680. The district court also found that the defamatory implication of the broadcast was "clear and inescapable." Id.
The Ninth Circuit reversed that finding, holding,
The district court erred in its ruling that an interpretation of the broadcast that 'should have been foreseen' by the NBC journalists can give rise to liability. The district court's standard of what 'should have been foreseen' is an objective negligence test while the actual malice test of New York Times is deliberatively subjective. . . . Negligence, weighed against an objective standard like the one used by the district court, can never give rise to liability in a public figure defamation case."
Id. at 680. The Ninth Circuit also held that the district court erred in concluding that the defendants were aware of and intended the defamatory meaning which was "clear and inescapable" to the trial court. The Court of Appeals held "such an approach eviscerates the First Amendment protection established by the New York Times. It would permit liability to be imposed not only for what was not said but also for what was not intended to be said." Id. at 681. The Ninth Circuit has therefore held that subjective awareness of defamatory meaning must be established in order to impose liability under the First Amendment.
The Seventh Circuit reached the same conclusion in Woods v. Evansville Press, 791 F.2d 480, and Saenz v. Playboy, 841 F.2d 1309. In Woods, a television station owner alleged that he was libeled in a newspaper column which he alleged falsely implied that he was dishonest, in financial trouble, and a religious fraud. 791 F.2d at 486. The court held plaintiff had not shown that the defendant had "intended the statement to contain such a defamatory implication or even knew that readers could reasonably interpret the statement to contain the defamatory implication." Id. at 487. In Saenz, a public official sued the author and publisher of an article which he alleged implied he was involved in human rights violations. The court held "where a plaintiff is claiming defamation by innuendo, he must also show with clear and convincing evidence that the defendants intended or knew of he implications the plaintiff is attempting to draw." Id. at 1318.
Plaintiff argues that even if the awareness of defamatory meaning is an element of defamation cases, it is limited to those cases which involve innuendo or indirect defamation. However, while Saenz refers only to defamation by innuendo, nothing Newton suggests such a limitation. The purpose of the awareness element is to ensure that liability is not imposed upon a defendant who acted without fault. Newton, 930 F.2d at 681. This must hold true regardless of whether the defendant's statement is directly or indirectly libelous. Finally, even if the awareness requirement is so limited, the Court finds that the quotations in this case constitute indirect libel.
Accordingly, for the foregoing reasons, the Court believes that awareness of defamatory meaning is properly an element of a defamation claim, particularly so in the case at hand in which the defamation is somewhat ambiguous and indirect. However, upon retrial, the Court will address the question of a reformulation of the jury instruction, given its view that awareness is a requirement of the Constitution rather than of state law and is an element of actual malice. The Court will also reconsider the issue of the appropriate standard of proof.
2. Reckless Disregard Instruction
Plaintiff's next argument is that if awareness of defamatory meaning is an element of the case, the Court should have instructed the jury that plaintiff could establish this element by showing the defendants acted in reckless disregard of defamatory meaning. The New Yorker contends that plaintiff has waived his arguments regarding an instruction on reckless disregard of defamatory meaning, and that no evidence of recklessness was presented.
Federal Rule of Civil Procedure 51 requires parties to object to the giving or the failure to give an instruction, "stating distinctly the matter objected to and the grounds of the objection." Fed. R. Civ. P. 51. The Ninth Circuit has held that Rule 51 must be read in conjunction with Rule 46. Brown v. Avemco Invest. Corp., 603 F.2d 1367, 1370 (9th Cir. 1979). Rule 46 provides that a party need not make a formal exception so long as the party "at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefore." Fed. R. Civ. P. 46. A party need not object only "if the party's position has previously been made clear to the court and it is plain that a further objection would be unavailing." Brown v. Avemco, 603 F.2d at 1370, citing 9 C. Wright & A. Miller, Federal Practice and Procedure § 2553 at 639-40 (1971). It is not enough for a party simply to propose an alternate instruction. Robert's Waikiki U-Drive Inc. v. Budget Rent-a-Car Systems, Inc., 732 F.2d 1403 (9th Cir. 1984). Instead, the trial court must be "made aware of any specific concern with the proposed instructions." Benigni v. Hemet, 879 F.2d 473, 475-76 (9th Cir. 1988). The Ninth Circuit has held that "the objection must be sufficiently specific to bring into focus the precise nature of the alleged error." Investment Service Co. v. Allied Equities Corp., 519 F.2d 508, 511 (9th Cir. 1975). A "specific objection or argument" must focus the issue "or give the court an opportunity to modify the instruction to incorporate the elements of the . . . proposed instructions." Benigni v. Hemet, 879 F.2d at 476.
In this case, the plaintiff and both defendants submitted both joint and separate proposed jury instructions, along with written arguments, prior to trial. The parties initially proposed Joint Jury Instruction No. 2, which included a requirement that plaintiff show that the defendants were aware of the defamatory meaning of the quotations by clear and convincing evidence. Plaintiff objected to that portion of the instruction, arguing in his Written Arguments Regarding the Parties' Proposed Jury Instructions that awareness of defamatory meaning was not an element of the case. However, plaintiff did not suggest at that time that recklessness should be included. Plaintiff then submitted his amended proposed jury instructions, which likewise did not address reckless disregard of defamatory meaning. On May 6, 1993, the Court issued its Partial Tentative Ruling, in which the Court indicated it would include an instruction requiring awareness of defamatory meaning by clear and convincing evidence. On May 10, 1993, in his response to the Court's tentative ruling, plaintiff argued that no such element, was required, but alternately argued that if the Court were to include such an element, the instruction should include the possibility of reckless disregard of defamatory meaning. On May 20, 1993, the Court issued another Tentative Ruling in which it stated that it would instruct the jury on awareness, but that the standard of proof was preponderance of the evidence. On May 26, 1993, plaintiff filed his proposed Special Verdict Form. Plaintiff's proposed form included a question about awareness of defamatory meaning, but did not propose a question relating to reckless disregard of defamatory meaning. The Court made its final ruling on the jury instructions, and the parties made their objections on the record on May 27, 1993. At that time, plaintiff stated an objection to the instructions relating to awareness of defamatory meaning. However, he did not make any mention of a standard of reckless disregard, nor did he focus his remarks or his argument on the reckless disregard standard.
This sequence of events, taken together, indicates that plaintiff waived his objection to the failure to give the reckless disregard instruction with respect to awareness of defamatory meaning. This element was not the focus of argument or discussion, and plaintiff did not vigorously press for this instruction. Indeed, plaintiff did not even make an argument about this standard in the post-trial phase until his reply brief.
Plaintiff argues that by submitting his written argument, he had done all that he could. He states "it is unclear what further steps defendant believes plaintiff should have taken." However, plaintiff could have more vigorously pressed the issue of reckless disregard when it was clear that the Court intended to give the instruction. The Court does not believe that "it was plain that a further objection would be unavailing," Brown v. Avemco, 603 F.2d at 1370. Plaintiff also argues that his special verdict form did not contain the recklessness standard because "disregarding the Court's ruling on the proper instruction would have provided no benefit to anyone, and would have simply insured that plaintiff's proposed questions would not be adopted by the Court." But this argument is belied by the fact that plaintiff did "disregard" the Court's rulings on the jury instructions and continued to advocate for alternate formulations in his proposed special verdict form. For example, question 5 of plaintiff's proposed special verdict form asked the jury to determine whether Malcolm was "acting as an employee or agent of the New Yorker" at a time when the Court had already determined that agency was not a basis for liability.
Thus, while it is a close call, the Court finds that plaintiff waived his argument on this issue.
b. Reckless Disregard
Because the waiver question is a close one, the Court will assume for the sake of discussion that plaintiff did not waive his argument on this element, and will consider the contention that the jury should have been instructed that liability could be established by a showing of reckless disregard of defamatory leaning. While plaintiff now argues that the jury should have been so instructed, the New Yorker argues that there is no reason to have such a requirement, and that the Constitution requires actual awareness.
Before addressing whether awareness of defamatory meaning can be established by reckless disregard, it is necessary to set forth the relevant meaning of reckless disregard. Generally, the word "reckless" describes conduct which is
at essence, negligent, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended. . . The usual leaning assigned to "reckless" . . . is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Since, however, it is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied (footnotes omitted).
W. Prosser and W. Keeton, Handbook of the Law of Torts, § 34 at 213 (5th Ed. 1984).
However, recklessness does not denote the same objective standard in the constitutional context. Rather, the libel defendant's conduct must be viewed subjectively. Newton v. National Broadcasting Company, 930 F.2d at 668-69.
As the Supreme Court stated,
A "reckless disregard" for the truth, . . . 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. The standard is a subjective one there must be sufficient evidence to permit the conclusion that the defendant actually had a high degree of awareness of probable falsity. As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.