Dunlap v. Philadelphia Newspapers, Inc.

BECK, Judge,

concurring:

I endorse the majority’s well-reasoned view that as the public official-libel plaintiff,1 Sergeant Dunlap had the burden of establishing the falsity of the defamatory material.

I depart from the majority’s view, however, and would hold that in matters dealing with public officials a finding of falsity may not be based on false inferences drawn from true facts. While I find the majority’s holding correct in matters where public officials are not involved, I conclude that a different standard should be established where public officials are involved.

In the instant case, I would not permit a finding of falsity where a recipient could draw false inferences from statements which the plaintiff admitted were true.

The majority’s holding too broadly restricts the press’ freedom to publish comment and criticism on official con*496duct. Too stringent constraints may deter critics of official conduct “from voicing their criticism, even though it is believed to be true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They [would] tend to make only statements which ‘steer far wider of the unlawful zone ....’” New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1964) (citation omitted).

In litigation involving official conduct, the court must weigh the potential mischief that critics of public officials may make against giving the press wider latitude in reporting and criticizing public officials and public policies.2 To be informed on matters of public interest, a democratic people must have constant recourse to a vigilant and vigorous press.

Therefore, I would hold that Dunlap failed to adduce evidence proving the falsity of the defamatory material. Accordingly, I would enter judgment for the appellant and would abstain from further inquiry in this matter.

Nevertheless, since the majority’s reasoning has elicited a discussion of the “Times malice” standard, I offer a brief comment which may further clarify that principle. The “Times malice” criterion as interpreted in this Commonwealth requires that

public officials .. . prove, with ‘convincing clarity,’ that the defamatory statements relating to their official conduct were made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686] . .. (1964) .... What constitutes a reckless disregard of the falsity of a statement was clarified in St. Amant v. Thompson, 390 *497U.S. 727, 731 [88 S.Ct. 1323, 1325, 20 L.Ed.2d 262] . . . (1968):
[C]ases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant, in fact, entertained serious doubt as to the truth of the publication. Publishing with such doubts shows reckless disregard to truth or falsity and demonstrates actual malice.

Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super.Ct. 588, 595-96, 422 A.2d 625, 629-30 (1980) (emphasis added), allocatur refused, February 3, 1981.

It is important to note that in the Commonwealth of Pennsylvania to meet the Times malice test publication must be made with reckless disregard or with serious doubt.

The majority does not frame its well reasoned opinion in the context of serious doubt although the lower court opinion addresses the issue of serious doubt. It is therefore important to underscore that some doubt is not serious doubt and that a lack of absolute certainty is not tantamount, without more, to serious doubt. “Garrison v. Louisiana, 379 U.S. 64, [74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125] . . . (1964) . . . emphasized the necessity for a showing that a false publication was made with a ‘high degree of awareness of . . . probable falsity.’ ” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Some doubt on the part of the publisher cannot support the requisite finding of “Times malice.”3 “The rationale for [the] strict [“Times malice”] standard is the recognition that ‘erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the “breathing space” that they “need ... to survive Brophy, 281 Pa.Superior Ct. at 602, 422 A.2d at 633 (quoting New York Times Co. at 271-72, 84 S.Ct. at 721) (citation omitted).

*498The trial court permitted a finding of serious doubt (“Times malice”) where the appellant published with some doubt or without absolute independent substantiation of every published statement. As stated in New York Times Co. at 279, 84 S.Ct. at 725, “[a] rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable ‘self-censorship .... ’ The rule thus dampens the vigor and limits the variety of public debate [and] is inconsistent with the First and Fourteenth Amendments.” (Footnote omitted.)

. In Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super.Ct. 588, 422 A.2d 625 (1980), allocatur refused, February 3, 1981, the trial court held that a police commissioner and two police officers were public officials to whom the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), standard applied. On appeal to the Superior Court neither the police commissioner nor the police officers contested their designation as public officials. Similarly, in the instant case the trial court held that Sergeant Dunlap was a public official whose case was controlled by the “Times malice” test. As in Brophy, on appeal to the Superior Court the public official designation of Sergeant Dunlap was not contested. Therefore, for the purposes of this litigation we assume, without deciding, the appellee’s public official status. See Rosenblatt v. Baer, 383 U.S. 75, 85-86, 86 S.Ct. 669, 675-676, 15 L.Ed.2d 597 (1966).

. “The press is the necessary representative of the public’s interest in this context and the instrumentality which effects the public’s rights.” Saxbe v. Washington Post Co., 417 U.S. 843, 864, 94 S.Ct. 2811, 2822, 41 L.Ed.2d 514 (1974) (Powell, J., dissenting) (quoted approvingly in Herbert v. Lando, 441 U.S. 153, 189, 99 S.Ct. 1635, 1655, 60 L.Ed.2d 115 (1979) (Brennan, J., dissenting in part)).

. St. Amant at 731, 88 S.Ct. at 1325.