Schafer v. Time, Inc.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 96-8730
_______________
D. C. Docket No. 1:93-CV-833-WBH

MICHAEL SCHAFER,

Plaintiff-Appellant,

versus

TIME, INC.,

Defendant-Appellee.

______________________________

Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(June 8, 1998)

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

BIRCH, Circuit Judge:

This diversity case requires us to parse the often conflicting and

confusing concepts of malice as they have evolved in Georgia's

*
Honorable Stanley Marcus was a U.S. District Judge for the
Southern District of Florida sitting by designation as a member of
this panel when this appeal was argued and taken under submission.
On November 24, 1997, he took the oath of office as a United States
Circuit Judge of the Eleventh Circuit.
libel laws. After instructing the jury on the applicable law and

receiving a subsequent request to define “malicious defamation,”

the district court instructed the jury that before the plaintiff-

appellant could recover for libel he had to show that the

defendant-appellee made a “statement deliberately calculated to

injure.” We REVERSE the district court on this issue and

REMAND this case for a new trial.

This appeal also presents a number of evidentiary questions,

most notably whether specific instances of misconduct are

admissible to prove character under Federal Rule of Evidence

405(b) in an action for libel under Georgia law. The plaintiff-

appellant challenges the district court's decision to admit character

evidence pursuant to Rule 405(b), as well as its decision to exclude

evidence under Federal Rule of Evidence 403 on the grounds that

its prejudicial effect substantially outweighed its relevance. Although

these evidentiary issues are not dispositive given our decision to

reverse the district court on the grounds mentioned above, they may

2
well arise at a second trial. Accordingly, we discuss these and a

number of additional questions raised in the parties' briefs in an

effort to guide the district court and the parties at retrial.

BACKGROUND

On December 21, 1988, Pan Am Flight 103 exploded in mid-

flight over Lockerbie, Scotland, causing the death of everyone on

board. A terrorist's bomb was then, and is now, widely suspected to

be the source of that explosion. On April 20, 1992, defendant-

appellee, Time, Inc. (“Time”), published a cover story entitled “The

Untold Story of Pan Am 103.” The article purported to debunk the

then-prevailing theory that the government of Lybia had sponsored

the attack on Pan Am 103. Instead, the article posited that a

Palestinian group, with connections to Syrian drug traffickers, had

targeted Pan Am 103 to eliminate several of the passengers who

were members of a United States counter terrorism team attempting

to rescue United States hostages in Lebanon. The article claims

3
that these passengers had discovered an unsavory, covert

relationship between the Syrian drug traffickers and a unit of the

United States Central Intelligence Agency and intended to expose

it upon their return to the United States.

The article further stated that an American agent, David

Lovejoy, had become a double agent and had leaked information

regarding the team's travel plans to forces hostile to the United

States. The article included a photograph of a man identified by the

following caption:

David Lovejoy, a reported double agent for the
U.S. and Iran, is alleged to have told Iranian
officials that McKee [one of the U.S. agents]
was booked on Flight 103.

See Schafer R. Excerpt 1, Exh. A at 31. The article went on to imply

that the information Lovejoy disclosed to hostile forces led to the

attack on Pan Am 103.

The photograph in question apparently became associated with

the Pam Am 103 bombing in connection with a civil case filed by the

4
families of the Pan Am 103 victims. The families' law suit claimed

that Pan Am had failed to take adequate security precautions to

prevent the bombing. One of Pan Am's lawyers in that case, James

Shaughnessy, filed a sworn affidavit that contained a variety of

assertions about the attack that he hoped to explore through

discovery in the Pan Am litigation. Shaughnessy's affidavit alleged

that unnamed sources had identified Lovejoy, the double agent

whose treachery facilitated the attack on Pan Am 103, as the man

in an attached photograph. The man in the photograph, however,

is Michael Schafer, the plaintiff-appellant in this case. Time's

article, therefore, erroneously identified Schafer, then working in his

family's janitorial business in Austell, Georgia, both as a traitor to the

United States government and a player in the bombing of Pan Am

103.1

1
The record in this case provides no definitive explanation
of how Shaughnessy obtained Schafer's picture or how Schafer became
identified as David Lovejoy. At trial, Schafer speculated that
Lester Coleman, named as a source in the Time article, provided the
picture to Pan Am's team of investigators and lawyers. Schafer
worked with Coleman in Beirut, Lebanon in 1985, when they were both
employed by the Christian Broadcast Network, and testified that he
provided Coleman with a number of pictures of himself in the course

5
 Upon discovering his picture in the magazine, Schafer

demanded and eventually received a retraction from Time. Schafer

filed suit against Time, making claims under Georgia's libel laws. A

jury returned a verdict in Time's favor, finding no liability for the error.

After filing a motion for a new trial, which the district court denied,

Schafer filed this timely appeal. Schafer challenges a number of the

district court's evidentiary rulings as well as the court's recharge to

the jury on the definition of “malicious” under Georgia's libel statute.

He also challenges both the district court's refusal to instruct the jury

that the republication of a libelous depiction constitutes libel under

Georgia law and the court's decision not to charge the jury on

Georgia's retraction statute.

DISCUSSION

I. Jury Instructions

A. The District Court's Recharge on the Issue of Malice

of his employment there.

6
 After trial, the court instructed the jury on the elements of libel

under Georgia law. The instructions included a recitation of

Georgia's statutory definition of libel:

[A] libel is a false and malicious defamation of
another expressed in print, writing, pictures or
signs, tending to injure the reputation of the
person and exposing him to public hatred,
contempt or ridicule.

R26 at 1534 (quoting O.C.G.A. § 51-5-1(a)) (emphasis added). The

instructions proceeded to explain the various elements of libel and

correctly instructed the jury that it need find, by a preponderance of

the evidence, only that Time failed to exercise ordinary care in

ascertaining whether the information it published was true or false

before it could find in Schafer's favor.

After describing these elements, the district court instructed the

jury on the plaintiff's claims for compensatory and punitive damages.

One of Schafer's theories for compensatory damages allowed the

jury to presume damages but required a clear and convincing

showing of “actual malice.” The court instructed the jury that:

7
 A publication is made with actual malice if it is
made with knowledge that it is false or with
reckless disregard of whether it is false or not.
In order to demonstrate actual malice, the
plaintiff must demonstrate more than just
negligence by a preponderance of the
evidence. He must prove by clear and
convincing evidence that the challenged libel
was made by the defendant with knowledge
that such statements were false or that the
defendant acted with reckless disregard of their
falsity. Reckless disregard is a high degree of
defendant's awareness of the probable falsity
of the statements made.

Id. at 1539. The court also instructed the jury that it could not award

punitive damages against Time unless it found “actual malice” as

defined above.

The instructions, therefore, referred to the concept of malice in

two different contexts: first, to describe the character of the

defamatory statement and, second, to describe the lack of care the

defendant employed in ascertaining the truth of the statement at

issue. Consequently, the jury found itself in some confusion as to

the use of malice in the instructions and asked the trial court to

8
explain its use in Georgia's statutory definition of libel. The district

court answered the jury by attempting to distinguish a “malicious

statement” from the concept of “actual malice” as it appeared in the

instructions on damages.

Malicious, as used in this particular
paragraph . . . , is not the same as the term
actual malice, which is defined for you in
connection with Mr. Schafer's claim that injury
to his reputation should be presumed. Instead,
as used here, it, along with the word false that
precedes it, describes the character of a
defamation that is libelous. It denotes
statements deliberately calculated to injure. In
all actions for defamation, this type of malice
may be inferred from the character of the
charge but it may be rebutted by proof.

Id. at 1569-70 (emphasis added). After receiving this instruction, the

jury resumed its deliberations and returned a verdict within the hour,

deciding that Time was not liable to Schafer for libel. Schafer

contends that the district court's re-charge, particularly the phrase

“deliberately calculated to injure,” misled the jury by improperly

9
requiring them to find that Time actually intended to injure Schafer

by publishing the photograph in order to find liability.2

The trial court took the wording of its recharge to the jury

directly from our decision in Straw v. Chase-Revel, Inc., 813 F.2d

356 (11th Cir. 1987). In that case, we examined the issue of

punitive damages awarded for a defendant's violation of Georgia's

libel laws and noted that the First Amendment to the United States

Constitution prohibited the award of punitive damages in a

defamation case absent a showing of “actual malice.” Id. at 360-63

(citing New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710,

2
Schafer's appeal is limited to the trial court's response
to the jury's question. See App. Reply Br. at 3. Despite Time's
disingenuous statements to the contrary, Schafer did not waive this
issue on appeal either by suggesting the contested language to the
district court or by failing to make his objection known to the
district court. In this case, during a discussion of the issue at
hand, the district judge began to discuss a particularly relevant
case and one of Schafer's lawyers responded that the case was Straw
v. Chase-Revel, Inc. See R26 at 1562. Although rules of procedure
occasionally have the unfortunate result of serving as “traps for
the unwary,” see United States v. Pool, 660 F.2d 547, 558 (5th Cir.
Unit B, 1982), we would be loath to hold that a litigant who
provides the name of the case under discussion to the court thereby
foregoes the right to object to the court's decision to apply that
case. The record shows that Schafer clearly communicated his
position on this issue to the district court and that, after the
judge gave the instruction to the jury, both parties noted their
exceptions to the charge as previously stated during argument. See
R26 at 1571.

10
11 L. Ed. 2d (1964) and Gertz v. Robert Welch, 418 U.S. 323, 94 S.

Ct. 2997, 51 L. Ed. 2d 789 (1974)). In that context, we undertook to

explain the difference between “actual malice” as defined in the

Supreme Court's cases and “common law malice” as it appears in

section 51-5-1. Id. We explained that “actual malice” referred to the

speaker's actual or constructive knowledge regarding the truth of the

statement.3 We then explained that “malicious,” as it appears in

section 51-5-1, refers to the defendant's statement, and that it

requires that statement to be of the type “deliberately calculated to

injure.” Id. at 362 (citing Williams v. Trust Co. of Georgia, 154 Ga.

App. 49, 56, 230 S.E.2d 45, 51 (1976)).

Although the Straw decision correctly states the law in

Georgia, we acknowledge that it does so in a confusing manner.

The confusion arises because a private plaintiff may recover for libel

under Georgia law without proving an intentional tort. See Triangle

3
As noted above, “actual malice” refers to whether the
defendant either knew the statement was false or published it with
a reckless disregard of whether it was false or not. Straw, 813
F.2d at 361.

11
Publications, Inc. v. Chumley, 253 Ga. 179, 181, 317 S.E.2d 534,

536 (Ga. 1984) (“an overwhelming majority of the state courts which

have addressed the question have held that a private figure plaintiff

may recover for defamation on a showing of negligence on the part

of the speaker or writer.”) (emphasis added). Any language

demanding a calculation to injure appears to conflict with this

negligence standard by suggesting that the plaintiff must show that

the defendant, motivated by some ill-will or “intentional hostility,”

actually sought or intended to injure the plaintiff.

As the Straw court explained in a footnote, however, there is no

such conflict in the law because the term malicious modifies only the

statement at issue; the defendant's subjective state of mind or

intentions towards the defendant are irrelevant at this point in the

jury's analysis. See Straw, 813 F.2d at 356 n.8; Van Gundy v.

Wilson, 84 Ga. App. 429, 438-39, 66 S.E.2d 93, 101 (Ga. Ct. App.

1951). Any statement can be malicious in the sense that it is of a

type calculated to injure, regardless of how the writer feels towards

12
his subject, if it suggests injurious (or, more plainly, bad) things

about the subject to the ordinary reader. By contrast, not everything

that comes from the pen of a writer who harbors a deep and

personal hostility toward the subject need be of a type calculated to

injure. The Straw court's explanations and limitations on the

applicability of common law malice in section 51-5-1 are consistent

with Georgia's cases that dismiss the defendant's private intentions

towards the plaintiff as irrelevant in the defamation context. See

Brooks v. Stone, 170 Ga. App. 457, 458, 317 S.E.2d 277, 279

(1984) aff'd 235 Ga. 565, 322 S.E.2d 728 (Ga. 1984) (“'In an action

for defamation it is immaterial what meaning the speaker intended

to convey. He may have spoken without any intention of injuring

another's reputation, but if has done so he must compensate the

party.'”) (quoting Southeastern Newspapers v. Walker, 76 Ga. App.

57, 61, 44 S.E.2d 697, 701 (1947)). Indeed, in the typical case

common law malice is presumed from the character of the

defamation at issue and may only be rebutted on the issue of

13
damages or to establish the defense of privilege. See O.C.G.A. §

51-5-5; Montgomery v. Pacific Southern Co., 131 Ga. App. 712, 717,

206 S.E.2d 631, 635 (1974)(“As to proof of malice, proof that the

writing is false, and that it maligns the private character . . . of

another, is itself evidence of legal malice.”) (emphasis omitted),

overruled on other grounds by, Diamond v. American Family

Corp., 186 Ga. App. 681, 368 S.E.2d 350 (Ga. Ct. App. 1988)).

Moreover, only by rejecting the notion that the use of the word

“malicious” in section 51-5-1 requires a showing that the defendant

intended to harm the plaintiff, can we reconcile the language in

Straw with our subsequent decision in Simon v. Shearson Lehman

Bros., Inc., 895 F.2d 1304 (11th Cir. 1990). In that case, the district

court instructed the jury that, as a matter of law, there was no

evidence that the defendant in making the defamatory remark had

acted with spite or ill-will towards the plaintiff. Id. at 1320.

Nevertheless, we upheld the jury's decision to hold the defendant

liable for slander and its award of punitive damages, because the

14
defendant's state of mind was irrelevant to the concept of malice in

either context. Significantly, after discussing “actual malice” we

wrote that “common law malice is presumed from the character of

the defamatory statement and has nothing to do with the defendant's

state of mind.” Id. (emphasis added).

Unfortunately, our use of the phrase “deliberately calculated

to injure” to define “malicious” as it appears in section 51-5-1, in

Straw and Simon, has tended to obfuscate rather than clarify

Georgia law on this issue.4 The natural and plain connotation of

the phrase “deliberately calculated to injure” suggests that the jury

must find that the defendant subjectively intended to injure the

plaintiff as a prerequisite for liability. Without the benefit of the

attendant explanations and limitations described at length above,

the definition is incomplete and misleading. The trial court's

instruction to the jury in this case, although literally accurate, in the

4
The district court noted precisely this point below: “The
law of defamation is by any test confusing and precious little has
been done by the courts, trial or appellate, to fix understandable
instructions.” R13-134 at 2 n.1.

15
context presented here, failed to properly guide the jury in its

deliberations and likely resulted in a legally misguided verdict.

Our review of a district court's charges to the jury is deferential,

and the trial judge is entitled to wide discretion over the style and

wording employed as long as the instructions accurately reflect the

law. See Carter v. Decisionone Corp., 122 F.3d 997, 1005 (11th Cir.

1997) (per curiam). We must examine “'whether the jury charges,

considered as a whole, sufficiently instructed the jury so that the

jurors understood the issues and were not misled.'” Id. (quoting

Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th

Cir. 1991)). Finally, we will reverse the district court only if “we are

'left with a substantial and ineradicable doubt as to whether the jury

was properly guided in its deliberations.'” Id. (quoting Johnson v.

Bryant, 671 F.2d 1276, 1280 (11th Cir. 1982).

As noted above, there can be no doubt that the trial court's

instructions on this issue were faithful to the language of our opinion

in Straw. Nevertheless, as that language, standing alone without

16
lengthy explanation, carries with it a powerful tendency to mislead

and confuse even those experienced in the law of libel, we cannot

say that the charge, as modified by the re-charge, adequately

focused the jury's attention on the proper factual issue. As the

Georgia Court of Appeals recently observed in a similar libel case,

an instruction “'which confuses the issues in the case and injects into

the case issues not made by the pleadings or the evidence is

presumptively harmful to the losing party.'” Davis v. Shavers, 225

Ga. App. 497, 501, 484 S.E.2d 243, 248 (Ga. Ct. App. 1997)

(internal quotation marks omitted). The jury's question on this point

and its subsequent decision, in obvious reliance on the court's re-

charge, serves only to underscore the concerns voiced above. As

a result, we are left with “an ineradicable doubt” that the jury found

for the defendant because the plaintiff had not proved Time

deliberately intended to injure him. Accordingly, we reverse and

remand this case for a new trial.5 Although our disposition of this

5
As a result, we decline to address the merits of Schafer's
related but undeveloped suggestion that an instruction on the issue

17
issue resolves this appeal, we address Schafer's remaining

challenges to the jury instructions to assist the district court and the

parties when these issues inevitably are resurrected upon retrial.

B. Refusal to Instruct the Jury on Republication

Next, Schafer challenges the district court's decision not to

include his proposed instruction that the unprivileged republication

of a libelous statement may constitute libel under Georgia law. We

review a district court's refusal to include a requested jury instruction

for an abuse of discretion. See United States v. Condon, 132 F.3d

653, 656 (11th Cir. 1998).

A defendant's republication of a libelous statement is a tort

under Georgia law, “independent and separate from the first

publication.” Peacock v. Retail Credit Co., 302 F. Supp. 418, 421

of malice is misplaced when the plaintiff has shown libel per se.
Compare Rosanova v. Playboy Enter., Inc., 411 F. Supp. 440, 445
(S.D.Ga. 1976) aff'd 580 F.2d 859 (5th Cir.1978) (“Libel per se is
a publication charging that one is guilty of a crime, dishonesty or
immorality. To be actionable the statement must be both false and
malicious.”) with Davis, 225 Ga. App. at 500-01, 484 S.E.2d at 247-
48 (implying, without supporting authority, that an instruction on
common law malice was inapplicable to a case involving libel per
se).

18
(N.D. Ga. 1969), aff'd, 429 F.2d 31, (quoting Howe v. Bradstreet Co.,

135 Ga. 564, 565, 69 S.E. 1082, (1911)). Liability in such a

situation, of course, requires the plaintiff to show that the defendant's

republication of the libelous statement itself satisfies all the elements

of the tort of libel, independent and apart from the actions of the

original act of libel. Cf. Howe, 135 Ga. at 565-66 (distinguishing

between joint-publishers and a republisher). In this case, therefore,

Schafer must prove that Time published his photograph without

exercising reasonable care as to whether it had correctly identified

the man in the picture as David Lovejoy; presumably it would be

insufficient to rely on the negligence of the person who filed the

affidavit in the Pan Am case.

Georgia's statutes provide an affirmative defense of privilege

when the libel defendant's statement constitutes a “fair and honest”

report of judicial bodies or court proceedings. See O.C.G.A. § 51-5-

7(5 & 6); Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 328, 60

S.E.2d 802, 810 (Ga. Ct. App. 1950). At the conclusion of the

19
evidence, the district court denied Time's motion for judgment as a

matter of law, finding that Time had not established that its

republication of Schafer's photograph from an affidavit filed in the

Pan Am 103 case was “fair and honest” as a matter of law.6 Despite

the court's ruling that Time was not entitled to the privilege as a

matter of law, Time presented evidence that the photograph came

from a sworn affidavit, filed in the Pan Am case, as well as its

reporter's efforts to confirm the identity of the man in the picture.

During closing argument, Time emphasized this evidence in an effort

to argue that Time had exercised reasonable care before publishing

the picture. Schafer argues that this tactic effectively nullified the

trial court's decision on privilege and that the jury should have been

instructed that the source of the photograph was legally irrelevant to

the question of Time's negligence.

6
Schafer makes a curious argument that Time's attempt to
rely on the privilege defense, which is one of “confession and
avoidance” somehow amounts to an admission of libel. Although
resort to the privilege defense constitutes “admission of
publication and bona fide,”it does not constitute an admission of
liability. See Auer v. Black, 163 Ga. App. 787, 789, 294 S.E.2d
616, 618-19 (Ga. Ct. App. 1982).

20
 An inquiry into negligence requires the jury to determine

whether the defendant acted reasonably under the circumstances.

The source of a particular piece of information is relevant to the facts

and circumstances that confront a defendant that republishes

information in the regular course of its business. Similarly, the steps

that such a defendant took to verify the identity of the man in the

photograph are similarly relevant to the question of negligence. See

Stange v. Cox Enter., 211 Ga. App. 731, 733-34, 440 S.E.2d 503,

506-07 (1994) (discussing the steps a publisher took to check the

accuracy of a story and editorial). Ironically, Schafer's own

prosecution of this cause of action, in which he has argued that Time

should never have published its story because it should have known

that the sources for much of the information in the story were

thoroughly unreliable, makes this point quite plainly.

Moreover, Schafer's contention that the jury was unaware of

the fact that a republication of a libelous statement could itself

constitute libel is unsupportable. As Time points out, the district

21
court instructed the jury that publication of the defamatory statement

was an element of the charge. The very fact that the court

submitted this case to the jury and asked it to decide whether Time's

republication of the photograph made it liable to Schafer for libel

demonstrates the jury could not have been misled into accepting the

source of the photograph as a complete defense. As a result, we

see no error in the district court's decision not to include Schafer's

requested charge.

C. Refusal to Instruct on Georgia's Retraction Statute

Finally, Schafer argues that the trial court erred by failing to

include language instructing the jury on Georgia's retraction statute.

The statute in question, O.C.G.A. § 51-5-11, permits a libel

defendant to limit its potential liability by printing a retraction that

conforms with several enumerated requirements.7 The parties agree

7
In pertinent part, the statute provides:

(b) In any such action, the defendant may allege and give
proof of the following matters as applicable:
(1) (A) That the matter alleged to have been
published and to be libelous was published without
malice;
(B) That the defendant, in a regular issue of

22
that Time's correction, printed over a month after Schafer gave

written demand for a retraction, did not comply with section 51-5-

11(b)(1).

Schafer argues that the court should have instructed the jury

that the statute sets out the minimum requirements for a legally

sufficient retraction. This argument, however, contradicts the plain

language of Georgia's statute. Section 51-5-11 allows a libel

defendant the option of limiting its liability for compensatory and

punitive damages by adhering to a number of specific conditions.

Time's failure to avail itself of the statute's protection did not make

its efforts at correction “legally insufficient” either in the sense that

the newspaper or other publication in question,
within seven days after receiving written demand,
or in the next regular issue of the newspaper or
other publication following receipt of the demand
if the next regular issue was not published within
seven days after receiving the demand, corrected
and retracted the allegedly libelous statement in
as conspicuous and public a manner as that in which
the alleged libelous statement was published . . .
.
. . . .
(c) Upon proof of the facts specified in paragraph (1) .
. . the plaintiff shall not be entitled to any punitive
damages and the defendant shall be liable only to pay
actual damages. . . .

O.C.G.A. § 51-5-11.

23
the jury could not consider a noncompliant correction as it relates

to the issues before it on the libel charge, or in the sense that

such a correction gave rise to some form of liability, see e.g.,

McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1515

(D.C. Cir. 1996) (finding no authority for a “duty to retract”).

Schafer cites no case that lends credibility to this reading of the

statute, and our own research has uncovered no authority that

supports his position.

As a result, section 51-5-11 had no bearing on the issues

before the jury,8 and the court correctly declined to include an

8
Schafer correctly points out that a number of courts have
discussed a refusal to retract or a defendant's publication of a
retraction in bad faith as evidence of actual malice. See Augusta
Chronicle Publ'g Co. v. Arrington, 42 Ga. App. 746, 157 S.E. 394
(Ga. Ct. App. 1930); Southern Bell Tel. & Tel. v. Coastal
Transmission Serv., Inc., 167 Ga. App. 611, 307 S.E.2d 83 (Ga. Ct.
App. 1983). In none of those cases, however, did the defendant's
failure to publish a retraction within the letter of a statute such
as section 51-5-11 constitute evidence of such bad faith. See
e.g., Brown v. Fawcett Pub., Inc. , 196 So.2d 465, 473 (Fla. Ct.
App. 1965) (defendant's retraction of stories accusing the
plaintiff of sodomy and murder, which did not appear for more than
a year after the grand jury found insufficient evidence to support
the charges, was evidence of actual malice). As a result, it would
have been error for the court to instruct the jury that a
retraction that failed to comply with the statute necessarily
constituted evidence of actual malice. See Bandido's Inc., v.
Journal Gazette Co., 574 N.E.2d 324, 328 (Ind. Ct. App. 1991).

24
instruction on the statute. Cf. Davis, 484 S.E.2d at 248 (noting

the error of including a charge that injects into a case issues not

relevant to the issues made by the pleadings and evidence).

Instead, the district court correctly instructed the jury that it could

consider the timing, content, and prominence of Time's correction

in its deliberations regarding whether Time had acted to limit

Schafer's damages. Moreover, the district court's instruction that

Time's failure to publish a correction that satisfied Schafer was

not, by itself, a basis for awarding damages was also a proper

and accurate statement of the law.

II Evidentiary Issues

Schafer also argues that the district court committed

reversible error by permitting Time's counsel to question Schafer

regarding a number of “specific acts of misconduct” during cross-

examination and by excluding from evidence a memorandum

25
discussing the credibility of Time's sources for the Pan Am 103

article. We review the district court's legal decision to apply a

particular rule of evidence de novo but its decision to admit or

exclude particular evidence under that rule for an abuse of

discretion. Cf. Carmichael v. Samyang Tire, Inc., 131 F.3d 1433,

1435 (11th Cir. 1997). We will not overturn an evidentiary ruling

unless the complaining party has shown a “substantial prejudicial

effect.” See Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.

1997).

A. Specific Acts of Misconduct

Evidence of a person's character is viewed with some

suspicion under the law and generally is disfavored in the Federal

Rules of Evidence. See Fed. R. Evid. 404 (character evidence

generally inadmissible to prove conforming conduct). In an action

for defamation or libel, however, the issue of the plaintiff's

reputation and character scarcely can be avoided because the

plaintiff typically seeks to recover compensation for damage to his

26
or her reputation. Even in such cases, however, the rules of

evidence prescribe particular methods for broaching the issue of

character. See Fed. R. Evid. 405 (“Methods of Proving

Character”).

Before trial, the district court instructed the parties that Time

would not be permitted to introduce and explore a number of

specific acts and events in Schafer's life as they were irrelevant

to the issues before the jury. At that time, however, the district

court warned both parties that the court would revisit the

character issue to the extent that particular acts and events were

shown to be relevant to the question of damages or how Schafer's

picture might have become associated with the Pan Am case.

During the course of the trial, the district court made a preliminary

ruling permitting Time to explore selective incidents and acts in

Schafer's background but excluding evidence of others.

Specifically, the district court ruled that Time would be permitted

to question Schafer about a felony conviction, a possible violation

27
of his subsequent parole, convictions for driving under the

influence, an arrest for writing a bad check, failure to file tax

returns, failure to pay alimony and child support, and evidence

concerning Schafer's efforts to change his name and social

security number.9 Schafer attacks the district court's ruling and

argues that these specific acts were inadmissible.

The Federal Rules of Evidence detail the circumstances

under which character evidence is admissible and the methods

available for presenting such evidence. In all cases in which

character evidence is admissible a party may offer reputation or

opinion testimony on the issue of a person's character. See Fed.

R. Evid. 405(a).10 Only in cases in which a person's character is

9
Schafer changed his name from Michael Franks at the age of
32 when he discovered that he had never legally been adopted. See
R21 at 4-5. The issue was relevant at trial because “Michael
Franks” was one of Lovejoy's purported aliases.
10
Rule 405 provides the following methods for introducing
character evidence:

(a) Reputation or opinion. In all cases in which
evidence of character or a trait of character of a person
is admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion. On
cross-examination, inquiry is allowable into relevant
specific instances of conduct.

28
“an essential element of a charge, claim or defense,” however,

may a party offer evidence of specific instances of conduct. See

Fed. R. Evid. 405(b).11

Character evidence does not constitute an “essential

element” of a claim or charge unless it alters the rights and

liabilities of the parties under the substantive law. See

United States v. Keiser, 57 F.3d 847, 856 & n.20 (9th Cir. 1995);

Perrin v. Anderson, 784 F.2d 1040, 1045 (10th Cir. 1986) (citing

McCormick on Evidence § 187 at 551 (3d ed. 1984)). Our

(b) Specific instances of conduct. In cases in which
character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof
may also be made of specific instances of that person's
conduct.

Fed. R. Evid. 405.
11
The advisory committee notes to Rule 405 provide some
insight as to the rule's limitations on the use of specific acts to
prove character:
Of the three methods of proving character
provided by the rule, evidence of specific
instances of conduct is the most convincing.
At the same time it possesses the greatest
capacity to arouse prejudice, to confuse, to
surprise, and to consume time. Consequently
the rule confines the use of evidence of this
kind to cases in which character is, in the
strict sense, in issue and hence deserving of
a searching inquiry.

Fed. R. Evid. 405, adv. comm. note.

29
determination of whether character constitutes an essential

element requires us to examine the “authoritative statutory or

common law statement of the elements of the prima facie case

and defenses.” Keiser, 57 F.3d at 856 n.20.12 The advisory

committee's notes to the Federal Rules of Evidence provide two

examples in which character evidence constitutes such an

essential element: “[1] the chastity of a victim under a statute

specifying her chastity as an element of the crime of seduction, or

[2] the competency of the driver in an action for negligently

entrusting a motor vehicle to an incompetent driver.” Fed. R.

Evid. 404(a) adv. comm. note (explaining that Rule 404 does not

exclude such evidence because it is not offered to prove conduct

consistent with character). In addition to these examples, a

charge of defamation or libel commonly makes damage to the

victim's reputation or character an essential element of the case.

12
As the Keiser court noted, this inquiry is a legal rather
than factual one, see Keiser, 57 F.3d at 856 n.20, and as a result,
our review of the district court's decision on this matter is de
novo. Id. at 852 n.6.

30
See e.g., Johnson v. Pistilli, No. 95 C 6424, (N.D. Ill. Oct. 8,

1996) (“It is rare that character is an essential element. The

typical example of such a case is defamation where injury to

reputation must be proven.”); see also Michael H. Graham,

Handbook of Federal Evidence § 405.2 (4th ed. 1996). Georgia

law confirms that an assertion of damage to reputation in a libel

case makes the plaintiff's character an issue under the

substantive law. See Ajouelo v. Auto-Soler Co., 61 Ga. App. 216,

6 S.E.2d 415, 419 (1939) (“It is generally held that the foundation

of an action for defamation is the injury done to the reputation,

that is, injury to character in the opinion of others arising from

publication . . . .”); Redfearn v. Thompson, 10 Ga. App. 550, 555

(1912) (permitting the jury to consider plaintiff's bad reputation in

mitigation of damages). Since the plaintiff's character is

substantively at issue in a libel case under Georgia law, Rule

405(b) permits the admission of evidence regarding specific

31
instances of the plaintiff's conduct on that issue.13 See Perrin,

784 F.2d at 1045; Government of the Virgin Islands v. Grant, 775

F.2d 508, 511 n.4 (3d Cir. 1985); cf. Longmire v. Alabama State

Univ., 151 F.R.D. 414, 419 (M.D. Al. 1992) (permitting discovery

regarding specific incidents because the libel plaintiff put his

character in issue); accord Ex Parte Healthsouth Corp., No.

1961758, 1970010, 2-3 (Ala. 1997) (permitting discovery of such

evidence in a libel case under a state rule of evidence identical to

Fed. R. Evid. 405(b)); Daniels v. Wal-Mart Stores, Inc., 634 So.2d

88, 93 (Miss. 1993) (making a similar observation in dicta). Given

13
Schafer's argument that this analysis puts “the horse
before the cart” because Rule 404 governs the question of whether
character evidence is admissible is unavailing. Rule 404 forbids
the use of character evidence to prove “action in conformity
therewith on a particular occasion,” or as the advisory committee's
notes describe it, the “circumstantial” use of character evidence.
See Fed. R. Evid. 404(a) adv. comm. notes. Rule 404 does not bar
the admission of character evidence when character or a particular
character trait is actually at issue. Id. Rule 404 permits the
character evidence in dispute here, and Rule 405 governs the
acceptable methods for introducing it.
For the sake of completing the analysis, however, we note that
even though evidence of specific acts is admissible to prove
character in a libel case under Rule 405(b), a district court must
still determine whether such acts pass muster under Federal Rule of
Evidence 401 (relevance) and Federal Rule of Evidence 403
(prejudice). See United States v. Barry, 814 F.2d 1400, 1403-04 &
n.6 (9th Cir. 1987). The district court's decision to admit the
evidence at issue here cannot be said to constitute an abuse of
discretion under these rules.

32
the plain language of Rule 405(b)), Schafer's arguments that

specific acts remain inadmissible to prove character in an action

for libel are unpersuasive.14

Accordingly, we find no error in Time's exploration of these

and other issues of character during its cross-examination of

Schafer. To the extent that Time strayed from the specific issues

of character enumerated in the district court's preliminary ruling,

including Time's questions regarding Schafer's work for Soldier of

Fortune magazine,15 Time's questions fell within the scope of

14
Schafer cites Butts v. Curtis Publ'g Co. , 225 F. Supp.
916 (N.D. Ga. 1964) aff'd, 351 F.2d 702 (5th Cir. 1965), 388 U.S.
130, 187 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), a case decided
before the Federal Rules of Evidence entered into effect on July 1,
1973, for the proposition that specific incidents of prior conduct
are not admissible to prove character in a libel case. Although
the district court in that case confirmed that character was an
essential issue in a libel case under Georgia law and that a
defendant could demonstrate that the “plaintiff's general character
is bad,” it held that both federal and state case law prevented the
defendant from relying on specific acts or general rumors to do so.
Id. at 921. The plain language of Rule 405(b), however,
contradicts Butts by expressly permitting the admission of specific
acts when character is an essential element of the case. Schafer
citation to Sharon v. Time, Inc., 103 F.R.D. 86 (S.D.N.Y. 1984), a
case that does not refer to Rule 405(b), does not require a
different result.
15
It strikes us that the district court could have permitted
Time to challenge Schafer's direct testimony about his travels and
work history without reference to the name of this particular
publication, the variable to which Schafer apparently attaches
prejudice. Given the parties' failure to suggest such an option,

33
Federal Rules of Evidence 405(a) and 608(b).16 We cannot say

that the district court's decisions on these matters rose to the level

of an abuse of discretion, nor can we say that Schafer suffered a

“substantial prejudicial effect.” See Rodman, 105 F.3d at 1341.

B. Exclusion of the Pondisco Memorandum

Next, Schafer attacks the district court's decision to exclude

from evidence a July 22, 1992 memorandum prepared by Robert

Pondisco, Time's Public Affairs Director. The memorandum

discusses some of the repercussions of Time's publication of the

Pan Am 103 story and addresses a number of charges that the

sources for the article obviously were unreliable. Significantly, the

memorandum does not mention the photograph at issue in this

case but confines its observations to the general outlines of

Time's story. Schafer argues that the district court should have

however, we cannot find that the district court abused its
discretion in this matter.
16
Rule 405(a) permits cross examination regarding specific
instances of conduct when character evidence is admissible. Rule
608(b) permits cross-examination regarding specific instances of
conduct to attack the credibility of a witness.

34
admitted the memorandum into evidence. Alternatively, he

argues that the district court erred by refusing to allow Schafer's

expert witness to discuss the memorandum to reveal the factual

basis of his testimony.17

The district court noted that the memorandum contained

hearsay and excluded the memorandum after finding that

prejudice substantially outweighed the document's marginal

relevance. Federal Rule of Evidence 401 sets out the standard

for determining whether evidence is relevant to an issue before

the court;18 Federal Rule of Evidence 403 governs the decision to

17
We decline to address Schafer's contention that the
district court should have permitted Schafer to use the memorandum
to cross-examine Time's witnesses and impeach their credibility.
Schafer has not pointed us to anything in the record that suggests
that Schafer requested an opportunity to use the Pondisco
memorandum for this purpose or that the district court denied any
such request. See R25 at 1266-67 (Time's expert witness claimed no
reliance on the memorandum when cross-examined by Schafer pursuant
to Fed. R. Evid. 705); R23 at 961-1001 (direct and cross-
examination of John Stacks, reflecting no mention of the Pondisco
memorandum). Ordinarily, we will not consider objections made for
the first time on appeal. See United States v. Prichett, 898
F.2d 130, 131 (11th Cir. 1990) (per curiam).
18
The rule provides:
“Relevant evidence” means evidence having
any tendency to make the existence of any fact
that is of consequence to the determination of
the action more probable or less probable than
it would be without the evidence.

35
exclude relevant evidence when “its probative value is

substantially outweighed by the danger of unfair prejudice”19. We

review the district court's exclusion of this evidence under Rule

403 for a clear abuse of discretion.20 See United States v.

Gilliard, No. 96-9459, (11th Cir. Jan. 21, 1998).

Schafer correctly points out that the memorandum

establishes that the article was controversial at Time before it was

published, that the sources for the story may not have been

credible, and that Time's publication of the report may have

violated internal policies and procedures. The memorandum,

however, does not mention Time's decision to publish the

Fed. R. Evid. 401.
19
Rule 403 provides:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.
Fed. R. Evid. 403.
20
Since we find that the district court did not clearly abuse
its discretion by excluding the memorandum under Rule 403, we need
not address the parties' arguments regarding the several levels of
hearsay present in the document.

36
particular photograph at issue or its efforts to verify the identity of

the man pictured in that photograph. As a result, the

memorandum was of marginal relevance to Schafer's claims.

Evidence that tends to show the general thrust of the article was

false and lacked credibility has virtually no direct impact on

Schafer's theory of the case. Schafer's claim for libel arose out of

Time's publication of his photograph in connection with an alleged

plot to destroy Pan Am 103 and kill hundreds of innocent

travelers. Even if Time's theory of the attack had been correct in

every other detail, Schafer's claim for libel would remain intact

because the article incorrectly identified him as David Lovejoy –

an alleged participant in that conspiracy.21 The only tangential

relevance the memorandum had to the issues before the court on

Schafer's claims, therefore, depended on an inference that the

problems described in the memorandum extended to Time's

21
In fact, the damage to Schafer, incorrectly identified as
David Lovejoy because of the photograph, would no doubt have been
much more severe if the rest of the article had turned out to be
accurate.

37
measures to verify the identity of the man in the offending picture.

Although we cannot dismiss the memorandum as completely

irrelevant, neither can we fault the district court for giving it little

weight.

Moreover, the potential for prejudice from such a

memorandum is plain. Schafer sought to use the memorandum

to show that Time's publication of the entire article constituted a

lapse in judgment and professional standards in the hope that the

jury would attribute the same lack of care to Time's decision to

publish his photograph. The district court correctly concluded that

such a tactic could mislead the jury and confuse the issues before

them. Accordingly, we discern no abuse of discretion in the

district court's decision to exclude the Pondisco memorandum

under Rule 403.

Schafer also argues that even if the district court correctly

excluded the Pondisco memorandum on the foregoing grounds,

the memorandum should have been admitted to provide the

38
factual basis for the testimony of Schafer's expert witness.

Edward Diamond testified on Schafer's behalf regarding Time's

decision to publish the Pan Am 103 article. In particular, Diamond

discussed a number of problems and issues that should have led

Time to delay its publication of the story or forego its publication

altogether. Diamond also discussed some reasons why Time

should not have published Schafer's photograph in connection

with the story. Schafer contends that the Pondisco memorandum

provided at least some of the factual basis for Diamond's

testimony and correctly notes that, in some circumstances,

Federal Rule of Evidence 703 permits an expert to rely on facts

or data that would not be admissible at trial.22 As we have

explained, however:

22
Rule 703 provides:
The facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be
admissible in evidence.
Fed. R. Evid. 703.

39
 Rule 703 . . . is not an open door to all
inadmissible evidence disguised as expert
opinion. Although experts are sometimes
allowed to refer to [inadmissible] . . . evidence
as a basis for their testimony, such
[inadmissible evidence] . . . must be the type
of evidence reasonably relied upon by
experts in the particular field in forming
opinions or inferences on the subject.

United States v. Scrima, 819 F.2d 996, 1002 (11th Cir. 1987). The

Pondisco memorandum is hardly the type of learned treatise or

statistical data, the prototypical subjects of Rule 703 decisions,

that an expert might rely upon within the ordinary course of his or

her profession. See Fed. R. Evid. 703 adv. comm. note. Nor has

Schafer made any attempt to demonstrate how this isolated

memorandum could be of the type an expert typically relies on to

bring it within Rule 703. As a result, the district court did not err by

preventing Diamond from referring to the memorandum to defend

his testimony upon cross examination.23

23
Moreover, we are at a loss to identify how Schafer may have
suffered any substantial prejudice from the district court's ruling
on this matter. Diamond's only attempt to rely on the Pondisco
memorandum during cross-examination came when Time's counsel
questioned him about his earlier assertion that a London newspaper

40
 CONCLUSION

Schafer asks that we reverse the district court's evidentiary

rulings and correct its instructions to the jury. We find no error in the

district court's decision to admit specific instances of conduct to

prove character under Federal Rule of Evidence 405(b) and its

decision to exclude the Pondisco memorandum under Federal Rule

of Evidence Rule 403. We also discern no error in the district court's

refusal either to give Schafer's proposed instruction on republication

of libel or to charge the jury on Georgia's retraction statute. We hold,

however, that the district court's re-charge to the jury in the context

of this case was in error and that this error raised a substantial

likelihood that the jury misapprehended the law as it deliberated on

the merits of the case. We, therefore, reverse the jury's verdict in

had published an article making similar allegations regarding the
bombing of Pan Am 103 and had been forced to retract the story.
Diamond actually held up the offending memorandum as a source for
this piece of information before Time's counsel could object. See
R20 at 729-30. As a result, Schafer's contention that this
isolated incident could have led the jury to believe that Diamond
was drawing his opinions from “thin air” is unpersuasive.

41
Time's favor and remand for a new trial in accordance with this

opinion. REVERSED and REMANDED.

42