NC Supreme Court upholds libel verdict against N&O, but orders review of damages
The State Supreme Court has upheld a jury’s decision that The News & Observer and a former reporter at the newspaper libeled a State Bureau of Investigation agent 10 years ago, but said the lower court will have to again decide how much the agent receives in damages.
In a unanimous decision released Friday, the court agreed that reporting by The N&O and then staff writer Mandy Locke met the definition of libel set in the landmark New York Times v. Sullivan case in 1964. That ruling by the U.S. Supreme Court found that to prove libel public officials must establish that journalists acted with “actual malice” toward them, rather than simply published incorrect information.
But the court also agreed with attorneys for Locke and The N&O that the Wake County jury that heard the case was given incomplete instructions about assessing damages. The jury awarded the SBI agent $9 million in compensation and punitive damages. A state cap on punitive damages reduced the award to $6 million.
The jury had found that Locke and The N&O showed “actual malice” toward agent Beth Desmond, whose forensics analysis of bullet fragments contributed to a murder conviction in Pitt County in 2006. Locke cast doubt on that analysis in a four-part series about the work of the SBI called “Agents’ Secrets” in 2010.
Desmond sued in 2016, claiming the article defamed her by suggesting she had falsified evidence in the case. The N.C. Court of Appeals upheld the jury’s verdict in 2018, concluding that evidence “tended to show that the primary objective” of Locke and The N&O was “sensationalism rather than truth.”
In a 75-page ruling, the Supreme Court agreed. It supported the lower court’s finding that experts quoted in the articles denied making statements attributed to them and that Locke and The N&O published them despite serious doubts that they were true.
“When viewed as a whole, the evidence is sufficient for the jury to find by clear and convincing evidence that defendants published the statements with actual malice — that is, ‘knowledge of falsity or a reckless disregard for the truth,’” the court ruled, quoting another First Amendment case from the U.S. Supreme Court.
The N&O’s attorney, Brad Kutrow, issued a brief written statement saying he was pleased the Supreme Court recognized that the Wake jury instruction was improper and set aside the punitive damages.
“We’re disappointed that the Court left the defamation ruling intact,” Kutrow continued, “but we understand its respect for the jury’s verdict.”
Kutrow did not say whether The N&O would appeal the decision to the U.S. Supreme Court, which it can do because the case deals with federal constitutional issues in the First Amendment.
Desmond’s attorney, Jim Johnson, said he was disappointed the justices threw out the punitive damages on “a technicality” and ordered a new trial to determine what Desmond is owed. He said he doesn’t think the outcome will be any different.
“We’re looking forward to trying it again,” he said in an interview. “All of the issues are in our favor.”
Johnson noted that the justices devoted most their ruling to detailing the evidence of actual malice against her.
“We certainly view this as a complete 100% vindication of Beth and her handling of her job, and a condemnation of The N&O and the way they reported this,” he said.
Case turns on New York Times v. Sullivan
The Supreme Court heard arguments in the case last November.
The N&O argued that the rulings against the paper in lower courts violated the legal precedent set in New York Times v. Sullivan, which set a higher bar for libel against public officials than for private individuals.
“The teaching of Times v. Sullivan is that in order to serve the purpose the First Amendment protects, reporters and news organizations must have protected breathing space to publish critical information about government officials,” Kutrow argued.
But Johnson, Desmond’s attorney, said there was enough evidence presented at the trial for a jury to conclude there was actual malice toward her.
Johnson noted that one of Locke’s experts, William Tobin, a former chief metallurgist for the FBI, sent Locke an email 11 days before the article was published that said he was not in a position to render an opinion about the Pitt County case. By that time, Johnson said, drafts of the article already quoted Tobin saying, “This is as bad as it can be. It raises questions about whether she did an analysis at all.”
Despite the email, Johnson said, those quotes remained in the article — evidence, Johnson said, that a jury could cite to determine that Locke knew she was going to misrepresent someone.
While the Supreme Court agreed with the lower court’s decision about malice, it ruled that the jury was given incomplete instructions about determining damages. It said the jury should have been told it could award punitive damages only if there were certain “aggravating factors.”
Under state law, those factors include “malice” and “willful or wanton conduct.” While the lower court reasoned that the jury’s finding of actual malice was enough to consider punitive damages, the definitions are not identical, the justices wrote.
“Certainly, much of the evidence presented in support of plaintiff’s showing of actual malice would also be relevant to the jury’s determination regarding the existence of the statutory aggravating factors,” they wrote. “However, the jury must in fact make such a determination upon proper instructions from the trial court before an award of punitive damages can be awarded.”
Punitive damages amounted to $4.5 million. The $1.5 million in compensatory damages would not be reviewed at a new trial.
The case’s impact on journalism
Other news organizations have followed The N&O case closely. Some filed briefs with the appeals court that said if the jury’s decision stood it would result in “intolerable self-censorship” by journalists who might hold back on coverage critical of public officials.
The Supreme Court acknowledged these concerns in its ruling Friday. But it quoted another U.S. Supreme Court ruling that says the press does not have “absolute immunity in its coverage of public figures,” and that self-censorship by the press is not the only societal value at issue.
“’If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation,’” the justices wrote, quoting the U.S. Supreme Court. “An individual still maintains a ‘right to the protection of his own good name.’”
Caitlin Vogus, staff attorney for the Reporters Committee for Freedom of the Press —one of the groups that filed briefs supporting the N&O — said they were disappointed in the ruling.
“News reports about forensic science are critical to the public’s awareness and understanding of the criminal justice system,” Vogus said in a written statement. “The First Amendment sets a high bar for proof of actual malice, which is meant to provide journalists with the breathing space needed for speech critical of public officials.”
Brooks Fuller, director of the N.C. Open Government Coalition at Elon University, said if The N&O were to appeal to the U.S. Supreme Court, it would likely become a nationally watched case.
The U.S. Supreme Court has not recently taken up a big libel case, Fuller said. And in 2019 when the court turned down one high-profile libel case, Justice Clarence Thomas said he had wanted the court to hear it because he would like to eliminate some of the protections that came from the New York Times v. Sullivan ruling.
Fuller said Chief Justice John Roberts may try to block that, since he’s a believer in upholding past precedent.
“But you could still see a push by the farther-right-leaning members of the court to reconsider this, which would not be something welcomed by newsrooms around the country,” he said.
Fuller also said it was notable that State Supreme Court justices wrote that “it was for the jury, not this Court, to determine whether defendants in fact acted with actual malice.”
He said that’s part of a nationwide trend of judges allowing jurors, not themselves, to have the final word on key matters in libel cases.
This story was originally published August 14, 2020 at 1:10 PM.
