11 L. Ed. 2d 686, 84 S. Ct. 710 (1964).
The burden of proving actual malice is a heavy one, requiring the plaintiff to demonstrate "that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement" against a standard of clear and convincing evidence. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511 n.30, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984). This necessitates more than a breach of ordinary care. "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 doubts as to the truth of his publication." Nader, 408 A.2d at 41.
Mere omission of certain facts in itself does not constitute evidence of actual malice, absent a demonstration that the defendant knew or believed the omission rendered the remaining report false. Time Inc. v. Pape, 401 U.S. 279, 289-92, 28 L. Ed. 2d 45, 91 S. Ct. 633 (1971). Defects in an investigation also are not evidence of malice unless there is "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." Sullivan, 376 U.S. at 278-88.
Because "the inquiry involved in a ruling on a motion for summary judgment . . . necessarily implicates the substantive evidentiary standard of proof that would apply at the trial," Anderson, 477 U.S. at 252, plaintiff at this summary judgment stage bears the burden of establishing that the evidence is of sufficient "caliber or quality to allow a rational finder of fact to find actual malice by clear and convincing evidence." Id. at 254 (emphasis added).
Plaintiff has failed to meet this burden. Plaintiff appears to rely, for his primary evidence of malice, upon Judge Holmes' exclusion of the Middleton Notice as hearsay in the unrelated 1986 case. Plaintiff attempts to argue that Judge Holmes found the Notice "inherently unreliable," e.g., Pl. Mem. at 13, and that defendants' knowing publication of an unreliable document is evidence of actual malice. Plaintiff misconstrues Judge Holmes' conclusion, however, and misstates its import. Nowhere in her opinion did Judge Holmes find the Notice "inherently unreliable." As previously discussed, she simply concluded that the Notice was "not inherently reliable" for the purposes of the hearsay rule. Defendants' knowledge of this holding is not evidence that defendants "entertained serious doubt as to the truth" of their broadcasts. Harper's reliance on Judge Holmes' suggestion in the 1986 case that WJLA-TV might have been reckless in broadcasting that unrelated report also is misplaced. This conclusion is particularly appropriate in light of the fact that WJLA-TV ultimately prevailed in that case in a jury trial on the merits.
Plaintiff next points to Slate's opinion that only seven of the women's allegations constituted harassment to argue that defendants knew the broadcasts were inaccurate. This argument already has been rejected. Because Slate himself relied upon all 13 women's allegations in his deliberations, defendants' mere publication of that reliance cannot constitute evidence of actual malice.
As evidence to contravene the Slate and Middleton Notices, plaintiff offers what he describes as an unsolicited letter signed by 11 co-workers protesting his proposed removal. Pl. Ex. D. He also submits a copy of an outstanding performance appraisal dated 1975, eight years before the EEOC investigation, Pl. Ex. E, and letters from the Assistant General Counsel of the Atlanta office dated 1976. None of this, however, poses a material fact in dispute or constitutes evidence of malice.
Plaintiff finally attempts to suggest that defendants maliciously aired a "sensational" report in order to boost their ratings during the annual rating period. Defendant Walters has testified in deposition, however, that the broadcasts were not prepared during a ratings period. Def. Ex. A, Deposition of Del Walters, at 62-63. Moreover, it is apparent from the face of the broadcasts that they were prepared to coincide with the Thomas confirmation hearings and that their primary target was Thomas, not Harper. It can hardly be questioned that the subject of the broadcasts was one of extreme public concern at the time they were aired.
Finally, the record contains no evidence that defendants knew the EEOC reports were false or entertained serious doubts as to their truth. See Walters Dep. at 55; Def. Ex. B, Deposition of Gary C. Wordlaw, at 22, 24-25. The broadcasts were based directly on two EEOC reports, one of which explicitly was concurred in by the EEOC Chairman. Walters has testified that in investigating the reports, he thoroughly reviewed the previous 1986 defamation lawsuit, Def. Ex. A at 51-52, 55-58, verified the authenticity of the EEOC Notices, id. at 92, spoke to one of Harper's former supervisors, id. at 61, and attempted to contact the witnesses named in the Slate Notice, reaching some of them. Id. at 59-60. As he stated in the 6:00 p.m. broadcast, Walters also tried repeatedly to contact Harper himself. Id. at 59; Def. Ex. C at 7.
Even considering all of the evidence above and the reasonable inferences therefrom in the light most favorable to plaintiff, Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), plaintiff has failed to offer evidence, much less clear and convincing evidence, on which a reasonable jury could base a finding of reckless conduct or malice. I therefore find that defendants did not waive their conditional privilege and that the broadcasts are protected against plaintiff's defamation claim as fair and accurate reports.
The accompanying Order accordingly grants summary judgment for defendants.
Date: May 27, 1993
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
ORDER - May 28, 1993, Filed
For the reasons stated in an accompanying Memorandum, it is this 27th day of May, 1993, hereby
ORDERED: that Defendants' Motion for Summary Judgment should be, and is hereby, GRANTED; and it is further
ORDERED: that the Complaint is hereby DISMISSED.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE