Mahoney v. Adirondack Publishing Co.

OPINION OF THE COURT

Thomas Bengston, the defendant in this libel action, is a newspaper reporter and the author of an article which appeared in the sports section of the October 3, 1983 edition of the Adirondack Daily Enterprise, a newspaper published by defendant Adirondack Publishing Company. The article was critical of the conduct of plaintiff Jeremiah Mahoney, a high school football coach, during a football game between Mahoney’s St. Lawrence Central High School team and a team from Tupper Lake. Mahoney commenced this libel action against Bengston and the newspaper publisher, claiming that portions of the article were false and that their publication harmed his reputation as a coach and educator. After a jury trial, during which he conceded that he was a public figure, Mahoney was awarded compensatory and punitive damages. The Appellate Division affirmed the ensuing judgment insofar as it awarded compensatory damages, but struck the award of punitive damages ( 123 AD2d 10 ). We granted defendants’ motion and plaintiffs cross motion for leave to appeal ( 69 NY2d 609 ) to determine whether the Appellate Division erred in either respect.

The dispositive issue is whether plaintiff proved by clear and convincing evidence that the defendants published the false portions of the article with "actual malice” — that is,

We also agree with the Appellate Division that the false portion of the article was reasonably susceptible of a defamatory meaning (see, Silsdorf v Levine, 59 NY2d 8 , 12-13; James v Gannett Co., 40 NY2d 415 , 419). Although it might be argued that the quoted language is not unexpected or out of character for a football coach, the thrust of the article was to the contrary — that such conduct should be condemned. The false attribution of such language to the plaintiff, when viewed in the context of the article as a whole, cast doubt on the plaintiff’s fitness for his profession. It cannot be said, therefore, that the excerpt was not defamatory as a matter of law.

That the story was false and defamatory, however, is not enough to sustain plaintiff’s claim. The law governing defamation actions is overlaid with a network of constitutionally based rules reflecting our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” (New York Times Co. v Sullivan, 376 US 254 , 270, supra). The rules are grounded in the First and Fourteenth Amendments and place significant restrictions on the ability of the States to fashion remedies for harm caused by defamatory publications, to ensure that fear of liability will not chill important free speech and free press rights and cause self-censorship. These protections vary considerably in scope and content depending on such factors as whether the plaintiff is a public official, public figure or private individual (see, Gertz v Robert Welch, Inc., 418 US 323 , 342-343); whether the defamatory statements involve an issue of public concern (see, Dun & Bradstreet v Greenmoss Bldrs.,

Plaintiff’s concession at trial — that he is a "public figure” for purposes of this action — triggered three of these constitutionally based rules of immediate relevance. First, plaintiff was required to prove that the defamatory statements were published with actual malice (see, Curtis Publ. Co. v Butts, 388 US 130 ; New York Times Co. v Sullivan, supra). Second, actual malice had to be established by clear and convincing evidence (see, Bose Corp. v Consumers Union, 466 US 485 , 511, n 30, supra). Third, appellate review must include an independent review of the evidence germane to the actual-malice determination to ensure that the determination rests upon clear and convincing evidence (see, id., at 514, n 31 ).

It is the third rule which compels this court, usually constrained to review only the law and without the power to disturb affirmed findings of fact, to review the evidence of actual malice. There was no direct evidence that Bengston or his employer knew or suspected the plaintiff did not utter the words attributed to him in the article. The only evidence of actual malice is the inference to be drawn from the proof that plaintiff in fact said something else to his quarterback. The logic advanced by plaintiff to support this inference is that, because Bengston was present, he must have known the true events and his erroneous account, therefore, must have been a deliberate falsehood. Under the circumstances presented, we conclude that this inference does not supply the clear and convincing evidence required to show that defendants knew the account was false or entertained doubt as to its truth.

Falsity and actual malice are distinct concepts. It is one thing to publish a false statement and quite another to do so knowingly or recklessly (see, Bose Corp. v Consumers Union, 466 US 485 , 511, supra). It may be possible, as the United States Supreme Court has suggested, that proof of falsity will support an inference of actual malice "when the alleged libel purports to be an eyewitness or other direct account of events that speak for themselves” (Time, Inc. v Pape, 401 US 279 , 285). The Appellate Division held that this case presented

The evidence was that Bengston observed the events some 30 feet from where they took place. The exchanges he reported between plaintiff and the quarterback occurred after plaintiff’s visiting team had delivered the ball into the hands of the home team, an event likely to excite the home crowd. It is probable, then — at least plaintiff did not show otherwise— that Bengston’s opportunity to hear the exchanges was less than ideal.

It is significant that the only witnesses who claimed to know what plaintiff actually said were plaintiff himself, the quarterback to whom he had spoken and the quarterback’s father. The other witnesses simply testified that they did not hear plaintiff use profane language. Plaintiff and the quarterback were obviously in a better position than Bengston to know what was said. The quarterback’s father sat about the same distance away as Bengston. All of this evidence supports the finding that Bengston’s report was inaccurate, but it does not lead to the conclusion that Bengston knew that it was false. There was no evidence to negate the possibility that Bengston simply misunderstood plaintiff. There was not, for example, testimony that plaintiff’s words were clearly audible to anyone in Bengston’s location.

Furthermore, the similarity between Bengston’s account ("get your head out of your &!(!!(&”) and plaintiff’s account ("get your head up”) suggests that the falsity was more the product of misperception than fabrication. In sum, we conclude that plaintiff failed to establish that the situation was sufficiently unambiguous to support the inference that the false statement was published with actual malice.

The absence of clear and convincing evidence of actual malice is fatal to plaintiff’s complaint. The question whether the award of punitive damages was properly stricken is,

Accordingly, plaintiffs cross appeal should be dismissed as academic and the Appellate Division order, insofar as appealed from, should be reversed and the complaint dismissed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On defendants’ appeal, order insofar as appealed from reversed, with costs, and complaint dismissed. Plaintiffs cross appeal dismissed, with costs.