No. 85-1.81
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
WARREN E. SIBLE,
Plaintiff and Appellant,
LEE ENTERPRISES, INC., an Iowa Corp.;
DONALD SCHWENNESEN; and MAX SALISBURY,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Alan J. Lerner, Bigfork, Montana
For Respondent:
Milodragovich, Dale & Dye; Harold V. Dye, Missoula,
Montana
Submitted on Briefs: June 12, 1986
Decided: November 25, 1986
id 4 2 ?\986
Filed:
*#
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
This is an appeal from the Flathead County District
Court jury trial and verdict finding the respondents had not
published a newspaper article with actual malice.
We reverse and remand for a new trial.
On December 29, 1982, The Missoulian published an
article authored by Donald Schwennesen headlined
"Ex-detective accuses Flathead County sheriff of coverup,
harassment." The article concerned an allegation by a former
Flathead County Sheriff's detective, Max Salisbury, that
appellant, Sible, had stolen a meat smoker and covered up the
investigation concerning the theft.
Numerous issues are raised in this Court but we find two
to be dispositive and to require reversal. Appellant
contends that the court improperly instructed the jury on
duties owed by The Missoulian to appellant, Sible. Further,
appellant contends that the court erred in applying the
"shield law" to protect Schwennesen's notes from being
discovered once he had testified as a witness. We find the
appellant to be correct on both counts.
First, we must view the evidence in a light most
favorable to the appellant and then determine whether the
court's instructions adequately presented appellant's case to
the jury. For our purposes, we assume that appellant was a
public official and that the "malice" standard articulated in
New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct.
710, 11 L.Ed.2d 686, applies to the case we here review.
In summary, in viewing the evidence in a light most
favorable to the appellant, The Missoulian article charged
that appellant had been investigated for theft and indicated
that he may have misused his official position by
participating in a coverup of his crime. Specifically, the
article states that Max Salisbury filed a notarized statement
with the Governor of Montana charging "his investigation of a
theft involving a fellow officer (appellant) was covered up."
The article further stated that appellant harassed Salisbury
and forced him to terminate his employment.
The charges of theft concerning appellant arose as the
result of a "smoker" allegedly taken from one William
Eckerson. Eckerson lost his "smoker" in 1 9 7 4 . The "smoker"
was worth between $15 and $20. Appellant did in fact have a
similar "smoker", but he obtained his "smoker" in 1 9 7 0 . A
subsequent internal investigation within the Sheriff's
Department determined that appellant's "smoker" was not the
one taken from Eckerson and the matter was dropped. The
"smoker caper" was generally known to the Kalispell
journalism community. Dan Black, managing editor of -
The
Daily Interlake, in Kalispell, refused to publish a story
because of the unreliability of the charges made by Salisbury
against appellant.
Sa.lisbury's statement regarding appellant was made
during a time of political controversy. Sheriff Rierson, the
incumbent Flathead County Sheriff, was engaged in a hot
election contest during the fall of 1 9 8 2 . Salisbury was
supporting Rierson's opponent. On October 6, 1 9 8 2 , Rierson's
opponents gathered at the home of one Stevens for the purpose
of developing campaign strategy. Salisbury attended this
meeting. Stevens informed Salisbury during the meeting that
they needed a statement from Salisbury charging appellant
with stealing the "smoker" so that they could embarrass
Rierson by showing appellant, who worked for Rierson, covered
up the investigation of his own theft. At the meeting,
Stevens told Salisbury that his friend, the reporter
Schwennesen, promised to write an article after the statement
was prepared.
Schwennesen knew Stevens disliked Riersonls
administration. Schwennesen informed Stevens that a written
notarized statement was necessary for him to write a story.
Schwennesen admitted he knew Salisbury's statement resulted
from Stevens1 encouragement and that he knew Stevens was
helping Rierson's opponent. Schwennesen further knew that
Stevens had assisted Salisbury in preparing the statement
which provided the basis for the subject story in
The Missoulian. Salisbury became very nervous about
Schwennesen doing a story on the "smoker caper." One John
Christian was an investigating officer on the "smoker"
allegation. Salisbury asked Schwennesen to contact Christian
about the truth of the charges, stating Christian would be
open and honest. Both Schwennesen and his editor were aware
that Salisbury was nervous about the charges and had
requested Christian be contacted to confirm the truth or
falsity of the allegation before an article was published.
Schwennesen promised to make an independent
investigation of the truth of the charges and contact
Christian before publishing an article. Despite his promise,
Schwennesen eventually published the story without contacting
Christian and without determining in his own mind if
Salisbury's charges were true or false.
Specifically, with reference to the instructions which
are hereafter discussed, Schwennesen testified that it
occurred to him Salisbury might have signed a false
statement. Schwennesen testified under oath that he knew
Christian could shed light on the charges of "theft",
"coverup" and "harassment". Despite this fact, Schwennesen
failed to interview Christian, although Christian was
ava.ilable and willing to be interviewed. Christian testified
at the trial that the charges made by Salisbury were without
merit and that he would have so advised Schwennesen had he
been contacted by Schwennesen prior to publication.
Eckerson, the man who lost his "smoker" in 1974,
attempted to dissuade Schwennesen from printing an article.
Eckerson told Schwennesen the story was "garbage" which
should not be published and further advised Schwennesen that
The Missoulian would sued for publishing the article.
Despite Eckerson's misgivings, Schwennesen informed Eckerson
that the story would be published no matter what he said.
With this evidence before the jury, although disputed,
the District Judge gave the following three instructions:
INSTRUCTION NO. 11
As a matter of law, Plaintiff is a public official,
and the newspaper article in question concerned his
official conduct. As such, he may not recover
against either Defendant unless he proves that the
newspaper article was false, unprivileged, and
defamatory, and. that it was published with malice,
that is, with knowledge that it was false, or with
a reckless disregard of the truth.
INSTRUCTION NO. 12
The term "reckless disregard of the truth," as used
in these instructions, does not mean mere
negligence, or even gross negligence or wanton
conduct. Rather, it means publishing an article
with a high degree of awareness of its probable
falsity, or that the Defendants, in fact,
entertained serious doubts as to the truth of the
publication.
INSTRUCTION NO. 13
The following are examples of the types of conduct
which constitute malice in publishing a statement
or allegation:
1) The story was fabricated by the Defendant;
or ,
2) The story was the product of the
Defendants' imagination; or,
3) The story was based wholly on an
unverified and anonymous telephone call; or,
4) The story contains allegations that are so
inherently improbable that only a reckless
person would put them into circulation; or,
5) The story was published despite obvious
reasons to doubt the veracity of the informant
upon whom the article was based, or to doubt
the accuracy of his reports.
This list is provided to aid you in determining
whether malice has been shown by the evidence in
this case. By providing it, the Court does not
mean to suggest that the list is all-encompassing
and therefore exclusive, nor does it suggest that
the evidence supports or does not support the
presence of any such conduct in this case.
Instruction No. 11 is taken from New York Times Co. v.
Sullivan, supra. The instruction is a correct statement of
the law. Instruction No. 12 is fatally defective in that it
defines "reckless disregard of the truth", as used in
Instruction No. 11, as being equivalent to having serious
doubts about the truth of the statement. Instruction No. 13
is erroneous in that it seeks to itemize instances of malice
to the exclusion of other instances which may not have
occurred to the District Judge. Lists such as the one set
forth in Instruction No. 13 are seldom appropriate.
The effect Instruction No. shield
newspaper where it knows that the source of its information
is highly suspect but fails to investigate. The newspaper is
shielded because it failed to investigate and find out that
certain information was false, choosing rather to close its
eyes and publish with no actual serj-ous doubts about the
falsity of the material. Such a rule encourages
irresponsible journalism. When a newspaper has facts that
indicate material is highly suspect, it should, and it does,
have a duty to investigate before publishing.
Instruction No. 11 correctly stated the law. A
newspaper is only liable for malice where it publishes with
knowledge of falsity or with a reckless disregard of the
truth.
The erroneous instructions may well have influenced the
outcome of this case. Schwennesen and his editor had reason
to believe that Salisbury's statement was highly suspect.
Schwennesen failed to interview Christian, who would have
told him that the statement was without any substance or
merit. The Missoulian published Salisbury's statement
without fully investigating and therefore, without actually
knowing the statement was false. Under the instructions of
the court, the jury could have found that The Missoulian was
reckless in failing to investigate but nevertheless found
there was no malice because The Missoulian did not entertain
serious doubts about the actual truth of the statement. Upon
remand, the court will instruct upon the proper standard
without embellishment.
Appellant further raises error in the District Court's
ruling which applied the "shield law" to protect
Schwennesen's notes. Generally, a reporter's sources are
privileged. The applicable statutes are found in the "Media
Confidentiality Act", 5 5 26-1-901, et seq., MCA. Section
26-1-902, MCA, provides:
(1) Without his or its consent no person,
including any newspaper, magazine, press
association, news agency, news service, radio
station, television station, or community antenna
television service or any person connected with or
employed by any of these for the purpose of
gathering, writing, editing, or disseminating news
may be examined as to or may be required to
disclose any information obtained or prepared or
the source of that information in any legal
proceeding if the information was gathered,
received, or processed in the course of his
employment or its business.
(2) A person described in subsection (1) may not
be adjudged in contempt by a judicial, legislative,
administrative, or any other body having the power
to issue subpoenas for refusing to disclose or
produce the source of any information or for
refusing to disclose any information obtained or
prepared in gathering, receiving, or processing
information in the course of his or its business.
The above-quoted statute protects a reporter's sources.
~chwennesen's notes were shielded by this statute until he
took the witness stand or testified by way of deposition.
Section 26-1-903(2), MCA, provides:
(2) If the person claiming the privilege
voluntarily offers to testify or to produce the
source, with or without having been subpoenaed or
ordered to testify or produce the source, before a
judicial, legislative, administrative, or other
body having the power to issue subpoenas or
judicially enforceable orders, he or it waives the
provisions of 26-1-902.
Under this provision, Schwennesen waived his privilege
to keep his notes confidential. Upon retrial the notes are
subject to discovery if Schwennsesen testifies.
Judgment in favor of The Missoulian is vacated. The
case is remanded for a new trial in accordance with the views
herein expressed.
We Concur:
/
Justices 4
Mr. Justice William E. Hunt, Sr., concurring:
I concur with the majority opinion concerning the jury
instructions given by the Court and I concur in the reversal
of the action on that basis. However, I do not agree with
the majority that the facts are as clear as they present
them.
My review of the record indicates that the article
contains errors and omissions, and in the final analysis
proved to be false. However, the fact that the article
ultimately proved to be false does not change my belief that
Sible has failed to clearly and convincingly prove that the
article was published with actual malice. As stated in New
York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct.
The constitutional protection does not turn upon
"the truth, popularity, or social utility of the
ideas and belief which are offered." (Citation
omitted. )
[Elrroneous statement is inevi.t.ablein free debate,
and ... must be protected if the freedoms of
expression are to have the "breathing space" that
they "need ...
to survive . . ."(Citation
omitted. )
376 U.S. at 271-72, 84 S.Ct. at 721, 11 L.Ed.2d at 701.
Montana is also committed to the notion that freedom of
expression should be as broad and unfettered as possible
recognizing such freedom must be weighed against an
individual ' s right privacy and reputation. Mont .
Const., Art. 11, 5 7; Cox v. Lee Enterprises (Mont. 1986),
Sible raises a number of errors and omissions in the
article, but especially finds fault with respondents' failure
to adequately investigate the story, and with the use of the
words "theft" and "coverup." Investigatory failures alone
are insufficient to establish reckless disregard of the
truth. Instead, Sible must show that the respondents'
conduct was highly unreasonable and constituted "an extreme
departure from the standards of investigation and reporting
ordinarily adhered to by responsible publishers." Curtis
Publishing Co. v. Butts (1967), 388 U.S. 130, 155, 87 S.Ct.
1975, 1991, 18 L.Ed.2d 1094, 1111.
Here, while respondents' investigation could have been
more thorough, it was not so unreasonable as to constitute an
extreme departure from responsible publishing standards.
Prior to his work on this story, Schwennesen had never
met Salisbury, and knew Sible only by appearance. Sible
testified he did not believe Schwennesen or anyone else at
The Missoulian was "out to get him." Schwennesen interviewed
all the major participants involved except one, a deputy
named Christian. He attempted to contact Christian twice but
he was on vacation. Schwennesen did not contact Christian
after he returned from vacation because by that time, Sible
had admitted to Schwennesen that he had the smoker. The
-
Missoulian also consulted with its legal counsel prior to
publication.
Schwennesen testified that Salisbury appeared to be
candid, forthright, and "sincerely believed what he was
telling" him. Further, Schwennesen verified the majority of
facts in the story. He confirmed that the smoker was missing
and that Sible admitted having it in his possession.
Salisbury's investigation into the matter was authorized by
Sheriff Rierson who later put Sible in charge of the
detective division. Salisbury's subsequent reprimand,
transfer to patrol, and ultimate resignation were verifiable
facts. I do not agree that respondents' investigatory
failures were so extreme as to amount to reckless disregard
of the truth.
Sible argues respondents' use of the words "theft" and
"coverup" in the article constitutes reckless disregard of
the truth. None of the sources for the story used those
words and Sible argues their use by Schwennesen amounted to
fabrication and publication of a known falsehood. I do not
agree.
The owner of the smoker, Eckerson, told Schwennesen that
he had seen a smoker that looked like his on property he
believed to be Sihle's. Eckerson further testified that he
thought Sible had taken his smoker, but did not want to make
an issue of it. In Salisbury's notarized statement which
Schwennesen read, he states that a man, Eckerson, told him
Sible "stole his smokehouse. " Salisbury went to Sible 's
residence and "located the smokehouse." Although no one used
the word "theft," it was implied from the statements and
interviews Schwennesen had prior to publication.
The use of the word "coverup" derived from the fact that
after Sible was placed in charge of the detective division,
Salisbury was reprimanded for failure to solve cases and his
demeanor with female complainants. He later transferred to
the patrol division and ultimately resigned.
I do not agree that respondents acted in reckless
disregard of the truth in using the words "theft" and
"coverup." Instead, the article was based upon interviews
with the major participants and probable conclusions from
verified facts.
Furthermore, I do not believe Schwennesen waived the
shield law as set out in § 26-1-902, MCA, by taking the
stand.
Schwennesen was named defendant in this action. He did
not file a counterclaim or a cross-claim, but did take the
stand in his own defense. He testified in great detail as to
the circumstances involving preparation of the article.
However, at no time did Schwennesen offer to introduce any
portion of his notes into evidence, nor did he refer to his
notes in his testimony to refresh his recollection or bolster
his testimony. I cannot agree that Schwennesen ever
"voluntarily offered" to produce or testify concerning the
contents of his notes.
The case of La1 v. CBS, Inc. (E.D.Pa. 1982), 551 F.Supp.
364, Aff'd (1984), 726 F.2d 97 is similar. In that case, a
federal district court judge held a reporter's notes
privileged under Pennsylvania's shield law even though the
reporter had a1read.y revealed her primary sources. In this
case, Schwennesen revealed his sources and testified
concerning preparation of the article. He did not
voluntarily testify concerning his notes or their contents.
Section 26-1-902, MCA, was written to encourage a free
and dynamic press by protecting journal-ists and related media
personnel from compelled disclosure of sources and
confidential information. It is our duty to uphold
1-egislative intent whenever possible. Therefore, I would
conclude that the District Court was correct in refusing to
compel production of Schwennesen's notes.
Because I agree that the jury was not properly
instructed as to actual malice, I concur with the majority in
reversing and remanding for new trial.