Koren v. Capital-Gazette Newspapers, Inc.

Moylan, J., delivered the opinion of the Court. The appellants, Hal Barry Koren, a minor, and his parents (hereinafter “the Korens”), appeal from an order of Judge George Sachse in the Circuit Court for Anne Arundel County granting a motion for summary judgment in favor of the appellees, Capital-Gazette Newspapers, Inc., publisher of The Evening Capital, an Annapolis newspaper, and one of its reporters (hereinafter, together, called “Capital”). The Korens had brought a libel action against Capital for publishing an allegedly false and malicious statement about Hal Barry Koren, describing his arrest by federal authorities on an extortion charge. In concluding that Judge Sachse was correct, we do not reach a series of intriguing constitutional issues raised by New York Times v. Sullivan, 376 U. S. 254 , 84 S. Ct. 710 , 11 L.Ed.2d 686 (1964); Curtis Publishing Co. v. Butts, 388 U. S. 130 , 87 S. Ct. 1975 , 18 L.Ed.2d 1094 (1967); Rosenbloom v. Metromedia, 403 U. S. 29 , 91 S. Ct. 1811 , 29 L.Ed.2d 296 (1971), and, most recently and revolutionarily, Gertz v. Welch, 42 L. W. 5123 (decided June 25, 1974).

A broad range of First Amendment considerations is foreclosed by our more pedestrian conclusion that the Korens did not cross the threshold of establishing a defamatory statement in the first instance. On October 10, 1972, the following article appeared in The Evening Capital: “EXTORTION HEARING SET TODAY” “By PETER RUEHL Staff Writer” (1) “Hal Barry Koren, the 17-year-old youth, arrested early Saturday and charged with ⁵⁷⁸ extortion, was scheduled to appear before a U.S. magistrate today in Baltimore for a preliminary hearing. (2) “The youth was released yesterday on $15,000 bail. His father, court sources said, had to pay 10 percent bail bond — $1,500 — to get young Koren out of jail.

(3) “Koren lives at 1520 Gordon Grove Drive, Annapolis. (4) “The Annapolis Senior High School student was arrested Saturday in Annapolis by FBI agents from the Baltimore office. He was charged with attempting to extort $20,000 from the Safeway Store in the Eastport Shopping Center. (5) “The store manager, Wilbur Dove, said he. received a lengthy letter demanding the money and threatening to place a bomb in the store if the money were not received.

(6) “The letter ordered the money to be delivered near the intersection of Bay Ridge and Arundel-on-the-Bay Roads and specified that the currency should be in $50 and $100 bills. The site would be marked by a white sheet on the left side of the road the letter said. The pick-up was scheduled for 9 p.m. Friday.

(7) “FBI agents set up roadblocks in the vicinity but Baltimore Special Agent in Charge Thomas H. Farrow declined to say when and where the actual arrest took place. (8) “Farrow said the bureau would not give out the information prior to Koren’s trial because of the gravity of the federal crime and because the accused is a juvenile. (9) “ ‘On the federal level, we restrict what we give out,’ Farrow said. He added he didn’t want to divulge the FBI’s methods in apprehending the suspect because it could result ⁵⁷⁹ in someone else trying the same thing and avoiding being caught.

(10) “ ‘The only thing that could happen if we gave the information out would be for someone to want to improve upon his (Koren’s) method,’ Farrow said. (11) “The preliminary hearing today was preceded by an arraignment Saturday in U.S. District Court in Baltimore. (12) “If tried as an adult and convicted, Koren would face a maximum sentence of 20 years and a minimum of five years. (13) “It is not know (sic) whether the FBI delivered the money or a decoy to the rendezvous site Friday night, but Safeway Stores officials said they didn’t participate in the arrest after alerting federal officials.

(14) “Dove, the store manager, quoted the letter as saying if the money were not received, the letter would sent (sic) to The Evening Capital for publication.” 1 On April 26, 1973, the Korens sued Capital for libel, alleging that the article was false, malicious and libelous per se. 2 They claimed $25,000 in compensatory damages 3 and $250,000 in punitive damages. 4 ⁵⁸⁰ In support of its motion for summary judgment, Capital submitted a copy of the Record of Proceedings before the United States- Magistrate for the District of Maryland, describing the circumstances of young Koren’s arrest, and the affidavits of three Capital employees: Peter Ruehl, the reporter who prepared the article at issue; James Camenga, another reporter who had prepared an earlier article on the same subject; and Joseph A. Panella, Jr., an editor who supervised the work of Ruehl and Camenga. In support of their answer to the motion, the Korens filed an affidavit of Thomas H. Farrow, the FBI agent who had been interviewed by Ruehl in the course of Ruehl’s preparation of the article. Capital then filed a second affidavit supplementing Ruehl’s earlier affidavit. Also available was the filed deposition of Camenga.

The focus of the case narrowed down to a very fine point; indeed, ultimately to a single word. The FBI was investigating a serious extortion, a threat to place a bomb in a large retail store if $20,000 were not turned over to the extortionist. The FBI set a trap. Young Koren, by a set of bizarre and unforeseen circumstances, apparently chanced into the trap.

Although probable cause apparently existed for the FBI to arrest him and to charge him, subsequent investigation revealed his lack of guilt and charges against him were dropped. The affidavits of Ruehl and Camenga, uncontested in this regard, established that neither reporter knew any of the Korens nor had any reason or desire to harm them in any way. Camenga wrote an initial article, not here in question, on October 9, 1972. He telephoned the Baltimore office of the FBI and learned therefrom that Hal Barry Koren, a seventeen-year-old Annapolis student, had been arrested by the FBI on October 6th and charged with extortion.

Camenga also was told by the FBI that young Koren had been arraigned. Camenga also interviewed the threatened store manager and learned the details of the threat. Ruehl was responsible for a follow-up article on October 10th. He relied for background upon Camenga’s article of October 9th.

That background constituted paragraphs 1, 4, 5, ⁵⁸¹ 6, 7, 13 and 14 of the October 10th article. For follow-up, Ruehl called the FBI office in Baltimore and spoke with Special Agent Thomas Farrow. He learned from Agent Farrow the address of Koren; the fact that Koren had been released on bail following a preliminary hearing; and the fact that Koren, if tried as an adult and convicted, would face a maximum sentence of 20 years and a minimum sentence of 5 years. This information, all factually correct, provided the basis for paragraphs 2, 3, 11 and 12 of the October 10th article.

Ruehl sought to elicit further information relating to the circumstances of Koren’s arrest. Agent Farrow declined to provide such information, giving as his reasons the statements which appear in paragraphs 8, 9 and 10 of the October 10th article. Initially, there is no question but that truth is an absolute shield for Capital in reporting accurately newsworthy events, even when the object of the coverage is a “private individual” as opposed to a “public official” or “public figure.” Time, Inc. v. Hill, 385 U. S. 374 , 87 S. Ct. 534 , 17 L.Ed.2d 456 (1967). 5 Even if the underlying arrest or the underlying criminal charges turn out to be ill-founded, it is well settled that in Maryland a newspaper enjoys a qualified privilege to publish reports of arrests and charges on which arrests are made, as well as other matters involving violation of the law. Evening News Co. v. Bowie, 154 Md. 604 , 141 A. 416 (1928); Piracci v. Hearst Corp., 263 F. Supp. 511 (D. Md. 1966) (construing Maryland law).

This privilege is lost only when it can be shown that the defendant abused the privilege by publishing the defamatory statement (the charges that turn out to be ill-founded) with “actual malice” (in the common law sense connoting hatred or ill will, as opposed to “constitutional malice” in the New York Times v. Sullivan sense connoting “knowing or reckless falsity”). ⁵⁸² Evening News v. Bowie, supra; Piracci v. Hearst Corp., supra. The burden of proving such malice is on the plaintiff. Domchick v. Greenbelt Consumer Services, Inc., 200 Md. 36 , 87 A. 2d 831 (1952); Stevenson v. Baltimore Baseball Club, Inc., 250 Md. 482 , 243 A. 2d 533 (1968); Simon v. Robinson, 221 Md. 200 , 154 A. 2d 911 (1959); Deckelman v. Lake, 149 Md. 533 , 131 A. 762 (1926). Cf.

A. S. Abell Co. v. Barnes, 258 Md. 56 , 265 A. 2d 207 (1970). With actual malice or ill will in the common law sense not remotely suggested, the Korens are bereft of even an arguable case with respect to paragraphs one through nine and eleven through fourteen. In reporting accurately what was told to its reporters by the FBI and by the victim of the crime, Capital was fully privileged. Even to begin to make a case, the Korens must establish some falsity emanating not from the FBI but from Capital directly.

They, of necessity, direct their fire exclusively at paragraph 10. We quote paragraph 9 as well, in order to place paragraph 10 in context: (9) “ ‘On the federal level, we restrict what we give out,’ Farrow said. He added he didn’t want to divulge the FBI’s methods in apprehending the suspect because it could result in someone else trying the same thing and avoiding being