Chesapeake Publishing Corp. v. Williams

MURPHY, Chief Judge. In this case we must determine whether the evidence presented by Petitioner David M. Williams about an allegedly libelous newspaper article was sufficient to support a defamation judgment against Respondent Chesapeake Publishing Corporation (Chesapeake). I. The defamation action arose out of an acrimonious child custody dispute between Williams and his former wife, Joan B. Turner, which began in 1978. In September, 1984, Turner obtained a temporary. custody order from the Juvenile and Domestic Relations District Court for Gloucester County, Virginia, the court stating that it found sufficient evidence “of abuse ... to warrant a[n] ... order allowing [Turner] to retain [her] child’s custody temporarily but conditioned upon her immediately filing custody ... or abuse proceedings in the state of Maryland.” On September 14, 1984, Turner filed a petition for custody in the Circuit Court for Talbot County, which included allegations of child abuse and an affidavit fcom police officer Thomas Gross describing an incident of abuse reported to him by the child and his observation of bruises consistent with the child’s account.

That incident, which became central to the custody proceeding, involved the child’s claim that her father, Williams, grabbed her by the arm, tossed her against a wall, and threw a chair at her. ²⁸⁹ A custody hearing was held on September 17, 1984 and, with consent of the parties, the court (North, J.) met with the child alone in chambers at which time the child repeated her description of the chair incident and expressed her desire to live with her mother. In a written statement summarizing the proceedings, the court decided to leave temporary custody with Turner. Williams nevertheless continued to pursue custody of his child through the winter and spring of 1985, but to no avail. In May of 1985, dissatisfied with his treatment in the courts, Williams circulated a letter to at least one thousand Talbot County voters, members of the Maryland General Assembly, and others involved in state politics.

The letter urged voters to be wary of legislative action that would take away their constitutional right to elect judges to the Maryland circuit court. To demonstrate the need to retain this power, Williams proceeded to detail the facts of his own custody case, describing what he perceived to be improper conduct by Judge North, which, according to Williams, resulted in the court arbitrarily awarding custody of his child to her mother who was unfit. The letter did not mention that he was discussing his own custody dispute nor did it report any of the abuse allegations, which played a major role throughout the proceeding. In June of 1985, Williams’s letter came to the attention of Pat Emory, a reporter employed by Chesapeake.

She telephoned Williams and, according to his testimony, informed him that she had received his voter letter and wanted to publish it, but that she needed more information about it first. Williams claims that he only spoke with Emory because he believed that she intended to publish his letter. Williams later testified that he told Emory that the custody dispute described in the correspondence was his own, but that he did not feel that it was necessary, or proper, to say that in the letter. He also said that he told her about the abuse allegations made by his former wife and daughter, explaining that the accusations were false and that, following an investigation, the Department of Social Services chose not to take any official ²⁹⁰ action with regard to them.

As to the alleged chair incident, which he insisted involved no physical abuse and simply amounted to a father disciplining his daughter for lying, Williams told Emory that he “hurt [his daughter’s] feelings when [he] disciplined her, which is what [he] intended to do.” He maintained that while he may have grabbed his daughter’s arm and shook her, he never threw a chair at her. Williams encouraged Emory to verify his story by reviewing the extensive court file pertaining to the custody case. On June 27, 1985, a newspaper article discussing Williams’s letter as well as his custody battle appeared in The Star Democrat, a Chesapeake-owned paper published in Talbot County. The same text, with a different headline (“David Williams Initiates Campaign to Reclaim Child”), appeared on July 3, 1985 in the Kent County News, a Chesapeake-owned paper published in Kent County.

The entire piece read as follows with the allegedly defamatory portions highlighted: “Attorney Targets Talbot Judge “A Chestertown lawyer has initiated a one-man letter-writing campaign he says is intended to save Marylanders’ constitutional right to elect circuit court judges. “He said his crusade comes after an unsuccessful, yearlong effort to reclaim custody of his daughter, whom a judge removed from his home last year. “The lawyer, David M. Williams, says he has mailed more than 1,000 copies of a three-page letter detailing the custody case to voters in Talbot County. He says he’ll keep mailing the letters ‘until they lock me up’. “The letter urges voters to stand up for their right to elect judges. “ You never know when you’ll need to exercise your vote in that way, but if it’s gone, where do you turn?’ Williams asks. “The letter also targets Talbot County Circuit Court Judge John C. North II. It portrays him as an insensitive judge who removed a child from her father’s comfortable ²⁹¹ Kent County home and put her with a mother whom Williams depicts as unfit. “Williams says his daughter is living in a camper on the back of a pickup truck. ‘On cold nights she kept warm by using a space heater and sleeping with a dog/ his letter claims. “ ‘You wouldn’t think they could take my kid away from me for non-existent child abuse, ’ he said. “Child abuse is not mentioned in the letter. It also doesn’t mention that Williams allegedly bruised the girl when he grabbed her, that he threw a chair at her or that he threw her against the wall, all of which he says is true. “‘I hurt her a little,’ Williams admitted in a recent telephone interview. “A school psychologist describes the child as having ‘intense dislike and frustration concerning her father. ’ “Philip Carey Foster, a court-appointed lawyer representing the child, said child abuse allegations made by the mother were never confirmed.

Law enforcement agencies also didn’t pursue any criminal prosecution. “Also unmentioned in Williams’ letter are accusations of physical abuse, drunkenness and temper fits, accusations made in court by two wives and Williams’ daughter. Williams says the charges were fabricated or occurred long ago. “Waller Hairston of Easton, the lawyer for Joan Turner of Virginia, Williams’ ex-wife, said, 7 don’t think the letter is appropriate by any stretch of the imagination. I don’t want to involve the details of that case in the press.’ “Judge North also declined to respond to the letter. “ 7 can’t respond in any fashion. My hands are tied by judicial ethics/ North said. “Another set of judges has essentially answered Williams’ charge that North is incompetent.

When Williams took his complaints to the Commission on Judicial Disabilities, which can remove a judge from office, the commission completed a ²⁹² preliminary study and found no reason to continue an investigation against North. “The custody case has been in almost every court on the Upper Eastern Shore. So much paper has been filed in the case that it stacks 2 feet high in a cardboard box in North’s office. Evidence even includes a tooth. Court officials describe the case as the ‘perfect television soap opera.’ “Williams’ letter has publicized the case, but it wasn’t exactly a private matter before then.

The director of Kent County’s Department of Social Services and several of his employees have been sued by Williams because of their involvement in the case. “Williams admits that the case has consumed much of his time but would not say how much it has cost him. He said he has spent at least $220 in stamps on the first mailing of 1,000 letters. “At present, circuit court judges in Maryland are appointed by the governor, then approved or rejected by voters in the next election. North, appointed to the circuit court in 1983, was unopposed and elected to a 15-year term last fall. “District court judges are appointed by the governor to 10-year terms and do not stand for election. “Some leaders, including Gov. Harry Hughes, want to relieve circuit court judges of their obligations to stand election.

But an effort in that direction failed during last winter’s General Assembly session. “Williams recently ran unsuccessfully against Judge George B. Rasin Jr. of Kent County, chief judge of the Second Judicial Circuit, of which North is a part. Williams claims that race may have prejudiced other judges against him. “By taking his case to the public, Williams says, he hopes to ‘correct what I call a cancer. We’re losing a little more of our individual rights.’ “ ‘I’m a hurt person. I’m very disappointed in the system, disappointed that this could happen.’ ²⁹³ “North, who has asked the Department of Social Services to find a foster home for Williams’ daughter, sees another victim. “ ‘The real tragedy of this whole thing is the poor little girl who has been torn one way and another,’ he said.” On July 22, 1985, Williams filed suit in the United States District Court for the District of Maryland against multiple defendants.

The complaint included a defamation claim against Chesapeake in which Williams alleged that certain statements made in the article published by its subsidiaries were defamatory per se in that they accused him of abusing his child in violation of Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 35A and of committing common law assault and battery. Chesapeake moved to dismiss the federal court action for lack of jurisdiction. The court allowed limited discovery on the jurisdictional issue, otherwise staying the federal proceedings pending resolution of the ongoing custody litigation in Maryland state court. On December 26, 1990, the federal court granted Chesapeake’s motion to dismiss, concluding that there was no factual basis for diversity jurisdiction and no legal basis for pendent jurisdiction in the case.

See Williams v. Anderson, 753 F.Supp. 1306 (D.Md.1990). Within 30 days of this dismissal, but more than five years after the initial publication of the article in question, Williams re-filed his defamation suit in the Circuit Court for Kent County. Chesapeake moved to have the state court action dismissed as untimely filed, which was denied. On February 23, 1993, the court granted a motion for partial summary judgment in favor of Chesapeake, determining Williams to be a public figure for purposes of this case. 1 A ²⁹⁴ jury trial was held and, at the conclusion of Williams’s presentation of evidence, Chesapeake moved for judgment pursuant to Maryland Rule 2-519. 2 The court granted the motion, finding that the article, when taken as a whole, was not defamatory.

It concluded that the piece contained substantially accurate summaries of matters described in court proceedings, which are conditionally privileged. Moreover, it determined that there was insufficient evidence of actual malice to allow the case to go to the jury. On August 6, 1993, Williams appealed to the intermediate appellate court, which reversed the circuit court judgment. The court held (1) that the suit was not barred by the statute of limitations in light of the provisions of Maryland Rule 2-101(b), which the court interpreted as requiring a retrospective application; 3 (2) that the elements of defamation were established by the evidence; and (3) that the trial court erred in granting judgment in favor of Chesapeake at the close of ²⁹⁵ the plaintiffs case.

See Williams v. Chesapeake Publishing, 101 Md.App. 263 , 646 A.2d 1031 (1994). We granted certiorari to consider the important issues raised in this case.

II

It is well-settled under both Maryland and federal law that “[t]he First Amendment of the United States Constitution requires that before a public figure may recover for defamation, clear and convincing evidence must establish that the statements in issue were: (1) defamatory in meaning, (2) false, and (3) made with ‘actual malice.’ ” Batson v. Shiflett, 325 Md. 684, 722 , 602 A.2d 1191 (1992) (citations omitted). See also Rosenberg v. Helinski, 328 Md. 664, 675 , 616 A.2d 866 (1992), cert. denied _ U.S. _, 113 S.Ct. 3041 , 125 L.Ed.2d 727 (1993); Hearst Corporation v. Hughes, 297 Md. 112, 120 , 466 A.2d 486 (1983). In determining the defamatory quality of a publication, which is a question of law for the court, the article must be read as a whole. Batson, supra, 325 Md. at 723 , 602 A.2d 1191 .

We have held: “The threshold question of whether a publication is defamatory in and of itself, or whether, in light of the extrinsic facts, it is reasonably capable of a defamatory interpretation is for the court upon reviewing the statement as a whole; words have different meanings depending on the context in which they are used and a meaning not warranted by the whole publication should not be imputed.” Id. See also Heath v. Hughes, 233 Md. 458, 464 , 197 A.2d 104 (1964); Hohman v. A.S. Abell Co., 44 Md.App. 193, 197 , 407 A.2d 794 (1979). As we have stated, “[t]he test is whether the words, taken in their common and ordinary meaning, in the sense in which they are generally used, are capable of defamatory construction.” Batson, supra, 325 Md. at 724 n. 14, 602 A.2d 1191 . According to Batson , “[a] defamatory statement is one which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or ²⁹⁶ dealing with, that person.” 325 Md. at 722-23 , 602 A.2d 1191 .

See also Rosenberg, supra, 328 Md. at 675 , 616 A.2d 866 . As to the second criterion, “[a] false statement is one that is not substantially correct. The burden of proving falsity is on the plaintiff; truth is not an affirmative defense.” Batson, supra, 325 Md. at 726 , 602 A.2d 1191 (citation omitted). See also Metromedia, Inc. v. Hillman, 285 Md. 161, 169 , 400 A.2d 1117 (1979); Jacron Sales Co. v. Sindorf, 276 Md. 580, 597 , 350 A.2d 688 (1976).

We have held that “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’” Batson, supra, 325 Md. at 726 , 602 A.2d 1191 (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 , 111 S.Ct. 2419, 2433 , 115 L.Ed.2d 447 (1991)). In Maryland, there exists a qualified privilege to report on legal proceedings, even if the story contains defamatory material, as long as the account is fair and substantially accurate. Rosenberg, supra, 328 Md. at 677 , 616 A.2d 866 . See also Batson, supra, 325 Md. at 727 , 602 A.2d 1191 ; Restatement (Second) of Torts § 611 (1977).

In Rosenberg , we held that “[operating in tandem with the absolute privilege accorded participants in court proceedings is a lesser privilege, alternatively described as qualified, conditional, or special, given to persons who report to others defamatory statements uttered during the course of judicial proceedings____ Reports of in-court proceedings containing defamatory material are privileged if they are fair and substantially correct or substantially accurate accounts of what took place.” 328 Md. at 677 , 616 A.2d 866 . Traditionally, in a defamation action, a qualified privilege will only be forfeited upon a showing of actual malice. 4 Id. at 677-78 , 616 A.2d 866 . ²⁹⁷ Rosenberg reveals that, with respect to the fair reporting privilege, however, “[t]he modern view discards the search for malice ... [T]he privilege exists even if the reporter of defamatory statements made in court believes or knows them to be false; the privilege is abused only if the report fails the test of fairness and accuracy.” Id. at 678 , 616 A.2d 866 . (citations omitted). See also Restatement (Second) of Torts § 611 (1977).

Finally, “[t]he fair reporting privilege reaches not only comprehensive accounts of judicial proceedings, but [also] accounts focusing more narrowly on important parts of such proceedings.” Rosenberg, supra, 328 Md. at 682 , 616 A.2d 866 . Finally, in order for a person to be held liable for defaming a public figure, actual or constitutional malice must be shown. Proving actual malice requires “clear and convincing evidence that a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Batson, supra, 325 Md. at 728 , 602 A.2d 1191 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710, 726 , 11 L.Ed.2d 686 (1964)). See also Hearst, supra, 297 Md. at 120 , 466 A.2d 486 ; Capital-Gazette Newspapers v. Stack, 293 Md. 528, 538 , 445 A.2d 1038 , cert. denied, 459 U.S. 989 , 103 S.Ct. 344 , 74 L.Ed.2d 384 (1982); Curtis Publishing Co. v. Butts, 388 U.S. 130 , 87 S.Ct. 1975 , 18 L.Ed.2d 1094 (1967) (extending the New York Times rule to public figures).

We have held that “while ‘reckless disregard for the truth’ is not easily defined, it does mean having either [a] ‘high degree of awareness of ... probable falsity’ or ‘entertaining] serious doubts’ as to the truth of