THE STATE OF SOUTH CAROLINA
In The Supreme Court

APPEAL FROM BERKELEY COUNTY
Court of Common Pleas

R. Markley Dennis, Jr., Circuit Court Judge
Deadra L. Jefferson, Circuit Court Judge
Roger M. Young, Circuit Court Judge

Opinion No. 4148 (S.C.Ct.App. filed Aug. 14, 2006)

Robert William Metts............................................................................................ Petitioner,

v.

Judy Mims, Berkeley Independent Publishing Company, Inc.,
d/b/a The Berkeley Independent, and
Summerville Communications, Inc.,
d/b/a The Goose Creek Gazette.......................................................................... Defendants,

Of whom Berkeley Independent Publishing Company, Inc.,
d/b/a The Berkeley Independent, and
Summerville Communications, Inc.,
d/b/a The Goose Creek Gazette are the............................................................ Respondents.

BRIEF Of RESPONDENTS

TABLE OF CONTENTS

Table of Authorities...................................................................................................................................... ii
Statement of Issues on Appeal................................................................................................................... 1
Statement of the Case................................................................................................................................. 1

Arguments

I.  The Circuit Court retained jurisdiction to rule on Newspapers’ summary judgment motion pursuant to Rule 205 SCACR, even after appeal of the discovery and contempt orders, and even if it had not, Metts did not properly preserve the issues. ...................................................................................................................... 4

II.        The Court of Appeals ruled correctly when it held the circuit court properly allowed the summary judgment motion to proceed despite another ruling that Newspapers were in contempt for their failure to comply with the discovery order. ................................................................................................................. 7

III.       The Court of Appeals was not required to address sanctions for Newspapers’ contempt because it declared the issues surrounding the contempt order were moot. ......................................................... 12

IV.       The Court of Appeals interpreted the facts and circumstantial evidence contained in the parties’ briefs and properly applied the principle of constitutional actual malice incorporated in numerous appellate court decisions, including Anderson v. Augusta Chronicle. ................................................................. 15

Conclusion ................................................................................................................................................... 31

TABLE OF AUTHORITIES

CASES

Bon Air Hotel, Inc. v. Time, Inc.,
426 F.2d 858, 864-865 (5th Cir. 1970)..................................................................................................... 23

Bose Corp. v. Consumers Union of U.S. Inc.,
466 U.S. 485, n. 30, 104 S.Ct. 1949, 1965 n. 30,
80 L.Ed.2d 502 (1984).......................................................................................................................... 24, 25

Browning v. Browning, 366 S.C. 255, 621 S.E.2d 389 (Ct.App 2005).............................................. 14

Carr v. Forbes, Inc., 259 F.3d 273, 283 (4^th Cir. 2001)......................................................................... 16

Elder v. Gaffney Ledger, 341 S.C. 108, 533 S.E.2d 899 (2000) ..................................... 15, 25, 26, 27

Ex parte Whetstone, 289 S.C. 580, 347 S.E.2d 881 (1986).......................................................... 10, 12

George v. Fabri,
548 S.E.2d 868, 345 S.C. 440 (2001)................................................................................................. 23, 27

Ledee v. Devoe, 225 Ga.App. 620, 484 S.E.2d 344 (Ga.App. 1997).................................................. 10

Masson v. The New Yorker Magazine,
     501 U.S. 496, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991)................................................... 24, 25

McClain v. Arnold,
     275 S.C. 282, 270 S.E.2d 124, 6 Media L. Rep. 1831 (1980)....................................................... 7, 23

McFarlane v. Esquire Magazine
     74 F.3d 1296, 1308 (D.C. Cir. 1996)..................................................................................................... 23

McFarlane v. Sheridan Square Press,
     91 F.3d 1501, 1508 (D.C. Cir. 1996)............................................................................................... 24, 27

New York Times v. Sullivan,
     376 U.S. 254, 279-80 (1964)................................................................................................................... 24

Newton v. National Broadcasting Co., Inc.,
      930 F.2d 662, 683 (9^th Cir. 1990).......................................................................................................... 15

Peeler v. Spartan Radiocasting, Inc.,
     324 S.C. 261, 269 n. 4, 478 S.E.2d 282, 286 n. 4 (1996)...................................................... 14, 24, 25

QZO, Inc. v. Moyer, 358 S.C. 246,
     594 S.E.2d 541 (Ct.App. 2004) .............................................................................................................. 14

St. Amant v. Thompson,
     390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)................................. 16, 24, 25, 26, 27, 30

Time, Inc. v. Pape,
401 U.S. 279, 292, 91 S.Ct. 633, 640, 28 L.Ed.2d 45 (1971)............................................................ 23, 26

Wasserman v. Time, Inc.,
     424 F.2d 920, 922 (D.C. Cir. 1970)........................................................................................................ 23

OTHER AUTHORITIES

Rule 205, SCACR.................................................................................................................................... 1, 4, 5

STATEMENT OF ISSUES ON APPEAL

I. Did the Circuit Court retain jurisdiction to rule on Newspapers’ summary judgment motion pursuant to Rule 205 SCACR, even after appeal of the discovery and contempt orders, and even if it had not, did Metts properly preserve the issue?

II. Did the Court of Appeals rule correctly when it held the circuit court properly allowed the summary judgment motion to proceed despite another ruling that Newspapers were in contempt for their failure to comply with the discovery order?

III. Was the Court of Appeals required to address sanctions for Newspapers’ contempt when it declared the issues surrounding the contempt order were moot?

IV Did the Court of Appeals interpret the facts and circumstantial evidence contained in the parties’ briefs and properly apply the principle of constitutional actual malice incorporated in numerous appellate court decisions, including Anderson v. Augusta Chronicle?

STATEMENT OF CASE

On September 29, 2003, Petitioner, Robert William Metts (“Metts”) filed his complaint against the Defendant, Judy Mims (“Mims”) and Respondents, Berkeley Independent Publishing, Inc. d/b/a The Berkeley Independent and Summerville Communications, Inc. d/b/a The Goose Creek Gazette (collectively, “Newspapers”) alleging a single cause of action for slander and libel per se.

Newspapers’ filed their answer on October 17, 2003. Newspapers denied the substance of Metts’ allegations and defended, in part, on the grounds that Metts was a public official and there was no clear and convincing evidence of constitutional actual malice.

By consent order, Metts filed an amended complaint on or about July 31, 2004, alleging causes of action for libel and slander, civil conspiracy and false light invasion of privacy.[1] (Appendix p. 36) Newspapers filed their answer to the amended complaint on August 14, 2004, asserting the same defenses as contained in their original Answer. (Appendix p. 43)

On April 28, 2004, Metts served a first supplemental request for production of documents that Newspaper produce several years’ worth of confidential financial information for themselves and their parent company, Evening Post Community Publications Group, Inc., and their parent company’s parent, Evening Post Publishing Company. (Appendix p. 72)

In their May 26, 2004 response to these requests, Newspapers refused to voluntarily turn over the financial information based on then current information and allegations.  (Appendix p. 79)

Metts then filed a motion dated on July 13, 2004 to compel the production of the financial documents. (Appendix p. 77) 

The Honorable Deadra Jefferson heard this motion on August 25, 2004, and issued a ruling from the bench requiring Newspapers to produce all the requested financial information. Judge Jefferson signed and filed a Form 4 order on August 26, 2004. (Appendix p. 17)

On September 3, 2004, Newspapers filed a motion for reconsideration, (Appendix p. 66), which was denied by an amended order dated October 18, 2004.  (Appendix p. 15) For reasons stated herein, Newspapers elected not to comply with the order.

On November 5, 2004, Metts served a motion for an order of contempt and for sanctions (Appendix p. 83)

On December 22, 2004, Newspapers filed a motion for summary judgment on the grounds that Metts was a public official; that there was no clear and convincing evidence of constitutional actual malice on the part of Newspapers; that there was no evidence of acts between Mims and Newspapers to support a cause of action for civil conspiracy; and that false light invasion of privacy was not a viable cause of action in South Carolina. (Appendix p. 85)

The Honorable R. Markley Dennis, Jr. presided over the hearing on Metts’ motion for an order of contempt and for sanctions on March 8, 200. He ruled Newspapers were in contempt, but imposed no sanctions. On April 28, 2005, Judge Dennis signed a written order memorializing this ruling. He also ordered a hearing on Newspapers’ motion for summary judgment. (Appendix p. 11)

On May 27, 2004, Newspapers filed their notice of appeal from the above referenced orders of Judge Dennis and Judge Jefferson. Metts filed a notice of appeal of Judge Dennis’s order on June 2, 2005.

On June 21, 2007, the Honorable Roger M. Young granted Newspapers’ motion for summary judgment. (Appendix p. 4) Metts filed a notice of appeal of Judge Young’s order on July 13, 2005.

The Court of Appeals affirmed the order of the circuit court granting Newspapers’ motion for summary judgment. Because the Court of Appeals ruled the lower court properly granted summary judgment, the Court saw no need to address any issues involving the contempt order. Robert William Metts v. Judy Mims, et.al., Op. No. 4148 (S.C. Ct. App. filed August 14, 2006) [Metts v. Mims, 370 S.C. 529, 533, 635 S. E.2d 640, 643 (Ct.App. 2006)]

ARGUMENTS

I. The Circuit Court retained jurisdiction to rule on Newspapers’ summary judgment motion pursuant to Rule 205 SCACR, even after appeal of the discovery and contempt orders, and even if it had not, Metts did not properly preserve the issues.

A. The circuit court retained jurisdiction to hear the motion under Rule 205, SCACR.

The cross-appeals of the contempt order did not affect the substantive issues raised by Newspapers’ motion for summary judgment and therefore, even if jurisdictional issues were properly before this Court, Metts’ argument fails under Rule 205, SCACR, which provides: 

Upon the service of appeal, the appellate court shall have exclusive jurisdiction over the appeal; . . . Nothing in these Rules shall prohibit the lower court. . . from proceeding with matters not affected by the appeal.” (emphasis added)

South Carolina Jurisprudence also supports the retention of jurisdiction by the lower court under the facts of the case under appeal as follows:

In addition, the trial court retains jurisdiction to proceed with a variety of matters not affected by the appeal. such as the award of attorney fees, trial on other claims or defenses, and dismissal on independent grounds.” 15 S.C. Juris. § 52, VI. Jurisdiction of the Trial Court Pending Appeal, A. Effect of Filing Notice of Appeal.

            Newspapers filed their notice of appeal from the orders of Judge Dennis and Judge Jefferson on May 27, 2004. That appeal was limited to the discovery order of Judge Jefferson directing the production of confidential and sensitive financial documents and to the order of contempt of Judge Dennis, the entry of which was necessary to allow Newspapers to appeal the otherwise interlocutory discovery order.    On June 2, 2004, Metts also filed a notice of appeal of Judge Dennis’s order, which simply challenged the refusal of Judge Dennis to impose sanctions on Newspapers.   

The issues on appeal were thus limited to the Newspapers’ challenge of the discovery order and Metts’ challenge of the lower court’s refusal to impose sanctions on Newspapers.  The information sought by Metts in discovery relating to Newspapers’ financial condition was relevant, if at all, only to his claim of punitive damages in the event he made the requisite showing at trial.  Therefore, the issues on appeal had no bearing on Newspapers’ motion for summary judgment filed on the grounds that Metts was a public official and there was insufficient evidence of constitutional actual malice as a matter of law. Indeed, Metts admitted, through counsel, at the summary judgment hearing that there was nothing in the discovery order pertinent to the summary judgment issue. (Appendix p. 188, line 14 – p. 189, line 23). As Newspapers’ financial records had no bearing on the summary judgment motion, the circuit court retained jurisdiction to rule on Newspapers’ motion under Rule 205, SCACR.

B. Unlike the question of whether subject matter jurisdiction ever existed in the original tribunal, the question of whether jurisdiction of disputed matters have been transferred to the appellate court or remains with the lower court needs to be preserved and, if not, is waived.

The opinion of the Court of Appeals did not discuss the lower court’s alleged lack of jurisdiction because it was not properly before the Court for review. Metts raised the supposed lack of jurisdiction of the circuit court to rule on Newspapers’ motion for summary judgment for the first time at oral argument before the Court of Appeals. (Appendix page 608, lines 16 - 22)  Metts neither presented the issue to the circuit court nor included it in his statement of issues on appeal to the Court of Appeals. (Appendix p. 540)

Generally, the trial court’s lack of subject matter jurisdiction may be raised for the first time on appeal. Nix v. Mercury Motor Express, Inc., 270 S.C. 427, 242 S.E.2d 683 (1978). This principle is applicable, however, only in cases where the original court of record lacked subject matter jurisdiction in the first place. Here, the Court of Common Pleas for Berkeley County unquestionably had subject matter jurisdiction of Metts’ claims against Newspapers. The question is not whether the circuit court wholly lacked subject matter jurisdiction of the claims, but whether the circuit court retained the power to hear matters which clearly were not the subject of the appeal. Unlike the question of the existence of subject matter jurisdiction ab initio, which may be raised at any time, the question of whether jurisdiction of discrete matters has been transferred to the appellate court or remains with the circuit court, is one which must be properly preserved and, if not, is waived.

The proper method for raising the lower court’s lack of jurisdiction to hear the summary judgment motion in this situation would have been to raise it in the circuit court, obtain a ruling and include it as an issue on appeal under Rule 208(B), SCACR. This approach would allow the circuit court to issue a ruling on the issue and also allow both parties to designate the transcript, pleadings orders, exhibits, etcetera in the record on appeal necessary to fully brief their respective positions on the law. That, of course, did not occur in this instance.

The last sentence of Rule 208(b)(1)(B), SCACR provides in clear and succinct language as follows:

“[O]rdinarily no point will be considered which is not set forth in the statement of the issues on appeal.”

Metts waived the issue by not preserving it for appeal, and the Court of Appeals did not commit error in refusing to address the alleged lack of jurisdiction of the lower court to hear Newspapers’ motion for summary judgment.

II. The Court of Appeals ruled correctly when it held the circuit court properly allowed the summary judgment motion to proceed despite another ruling that Newspapers were in contempt for their failure to comply with the discovery order.

A. The Court of Appeals ruled correctly that Judge Dennis retained the discretion to change his mind and amend his oral ruling in the final written order.  

On March 8, 2005, Judge Dennis held a hearing on Metts’ motion for contempt and sanctions.[2] After holding the Newspapers in contempt to allow an appeal of the discovery order, but refusing to impose sanctions, Judge Dennis held Newspapers’ motion for summary judgment in abeyance. (Appendix p. 212, line 16 – p. 213, line 22) Judge Dennis directed counsel for Newspapers to prepare a formal written order for his signature. (Appendix p. 214, line 25 – p. 215, p. 7)

On March 9, 2005, counsel for Newspapers wrote Judge Dennis asking for clarification:  

I would appreciate some clarification.

If my motion for summary judgment is held in abeyance because of my appeal of the contempt order, then the trial is also held in abeyance is my reading of the situation. Surely, I am entitled to a full hearing on my motion in a libel case vs. a newspaper in accord with McClain v. Arnold, 270 S. E. 2d 124 (1980) before having to go to trial.

(Appendix p. 478)

Judge Dennis responded on March 14, 2005:

. . . If the information which the defendant was ordered to produce would be pertinent to any of the issues raised in the Summary Judgment, then it would have to be stayed until the Appeal is heard. If not, I know of no reason for not going forward with the Summary Judgment Motion. Certainly the trial of the case most probably would have to be stayed until the appeal is resolved.

(Appendix p. 473)

Counsel for Newspapers responded that the parties should proceed with the motion hearing because Newspapers’ financial records had no bearing on whether Newspapers had acted with constitutional actual malice. (Appendix, pp. 471 – 472). Metts objected to the proposed order sent to Judge Dennis because he did not believe Newspapers should have the right to explain why they asked to be held in contempt, although that was the main focus of the contempt hearing before Judge Dennis. (Letter, Appendix, pp. 501 – 502; Hearing, Appendix, p. 205, line 18 – p. 215, line 9) Metts, through counsel, admitted at the subsequent summary judgment motion hearing that there was nothing in the discovery order that was pertinent to the summary judgment issue. (Appendix, p. 188, line 14 – page 189, line 23) After hearing from both sides, Judge Dennis signed the formal written order on April 28, 2005, ordering that the motion for summary judgment should proceed. (Appendix pp. 11 – 12)

Metts argues that the Court of Appeals was in error because an unsigned Form 4 order filed by the Clerk of Court subsequent to the March 8, 2005 hearing was a final order that Judge Dennis did not amend.[3] Metts does not give any authority for his position that the issuance of such an unsigned form order by the Clerk of Court prohibits the judge from changing his oral ruling. Furthermore, in a memorandum filed on April 7, 2005, a deputy in the Clerk of Court’s office wrote to counsel telling them to “disregard/destroy the unsigned Form 4 order either mailed or emailed to you as a result of the motion hearings held on 3-8-05 before the Honorable R. Markley Dennis, Jr.” (Appendix p. 20) This action by the Clerk’s office effectively rescinded the unsigned form order in advance of Judge Dennis’s formal written order he signed on April 28, 2005.

The Court of Appeals correctly disregarded Metts’ argument and found that Judge Dennis retained the discretion to change his mind and amend his oral ruling after hearing from counsel for the parties.  

B. The fact that there was an existing order holding Newspapers in contempt did not prevent the circuit court from considering the summary judgment motion.

The Court of Appeals reasoned correctly that “[i]n the interest of judicial economy, it made sense to allow the summary judgment to go forward because if the motion was resolved in favor of Newspaper, there would be no reason for Newspaper to produce its financial records to Metts.” Metts v. Mims, 370 S.C. 529, 533, 635 S. E.2d 640, 643 (Ct.App. 2006) That, of course, was precisely Newspapers’ argument from “day one.”

Under the facts of this case, Metts argues that there should be two separate appeals. First, Newspapers should have to appeal the issuance of the contempt order and the underlying discovery order. After the appellate court ruled on that issue, the parties would only then proceed to a hearing on the motion for summary judgment. Metts could then appeal the dismissal of his lawsuit. That makes no sense and runs counter to the interests of judicial economy cited by the Court of Appeals.     

The Court of Appeals correctly ruled that since the circuit court properly granted the Newspapers’ summary judgment motion, there was no need to address the issues relating to the contempt order.

Newspapers filed an appeal of the discovery order to obtain a ruling on whether a party, be it a private person or public business, should have to produce confidential financial or personal records to a competitor or adversary based solely on allegations in a complaint.

Newspapers cited a case to the Court of Appeals from the Georgia Court of Appeals with a factual situation remarkably similar to this case. In Ledee v. Devoe, 225 Ga.App. 620, 484 S.E.2d 344 (Ga.App. 1997), Plaintiff sought extensive information about defendant’s financial circumstances because plaintiff claimed defendant was potentially liable for punitive damages. Defendant contested this production pending the resolution of certain threshold issues. Defendant’s pleas for protection, however, initially fell on deaf ears.  In the words of the lower court:

. . . the court hereby finds that all discovery propounded by the plaintiff is to be responded to in full, that a prima facie showing of entitlement to punitive damages has been made by plaintiff and that further discovery as to all issues, including the worldly circumstances of defendant William Ledee, are appropriately discoverable by the plaintiff.

The court further orders that all information acquired through discovery concerning defendant’s worldly circumstances is to be kept under seal until such time as this court rules otherwise. Further, the plaintiff, her attorneys, and all of their agents and employees are to make no disclosures of same, except as a part of trial or the above-styled matter.

Id., 225 Ga.App. 620, 623, 484 S.E.2d 344, 347

In reversing this ruling, the Georgia appellate court held, in part, that:

. . . Notwithstanding the admissibility of evidence of the defendant's worldly circumstances in punitive damage cases, a mere demand for punitive damages does not authorize the type of discovery sought in this case.   Though mindful that the trial court has determined that Devoe has made a prima facie showing that Ledee is liable for punitive damages, the trial court has not ruled on Ledee's motion for summary judgment which claims that, as a matter of law, he did not cause Devoe's damages.   Further, the record does not indicate that Devoe made an "evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for her punitive damage claim.  Mere allegations in the complaint or otherwise and representations by counsel do not suffice;  there must be an evidentiary showing.  [citations omitted] . . .

A ruling on Ledee's liability, as a matter of law, would be determinative of Devoe's right to this discovery.  If Devoe cannot show a causal connection between Ledee's actions and her injury, summary judgment would be warranted, and this dispute would be avoided.   We do not mean to say, however, that a ruling on a motion for summary judgment is always required in these disputes.   It is enough if a plaintiff supports her claim to this kind of discovery with affidavits, discovery responses, or other evidence sufficient to show that ‘an evidentiary basis exists for the punitive damage claim.’ Even though we recognize that the trial court has ordered that the discovery responses be kept under seal and has restricted disclosure of that information, until the required evidentiary basis is shown, even those measures are not sufficient.   Who would want any strangers to have access to the type of financial information requested in this case from Ledee regardless of the safeguards imposed to restrict access only to those strangers? [citations omitted]

Id., , 225 Ga.App. 620, 624-625, 484 S.E.2d 344, 347-348.

The only avenue for Newspapers to challenge what they believed to be a seriously flawed discovery order, and ask for a ruling similar to Ledee, was to go into contempt for failing to comply with the order and appeal the contempt ruling. This procedure is a valid and recognized one by a party to seek appellate review of discovery orders. See, Tucker v. Honda of South Carolina Mfg., Inc., 354 S.C. 574, 577, 582 S.E.2d 405, 406 - 07 (2003), Ex parte Whetstone, 289 S.C. 580, 347 S.E.2d 881 (1986)  Newspapers’ use of established procedure should not be held against them. Metts has cited no authority to show that the Court erred in refusing to address the issues involving the contempt order.

III. The Court of Appeals was not required to address sanctions for Newspapers’ contempt because it declared the issues surrounding the contempt order were moot.

A. The Court of Appeals did not err in failing to address the issues surrounding the contempt order.

For the above stated reasons, the Court of Appeals was not required to address issues that were moot. The lower court granted summary judgment on the grounds that there was insufficient evidence of constitutional actual malice on the part of Newspapers as a matter of law. As such, the question of whether Newspapers financial records were discoverable was moot, as the Court of Appeals recognized. Therefore, this Court should not reverse the Court of Appeals on this issue.

B.The lower court properly exercised its discretion in imposing no sanctions on Newspapers under the facts of this case.

Even if the issues surrounding the contempt order were not moot, the imposition of sanctions was within the sound discretion of the trial court. As previously noted by reference to the transcript of the hearing before Judge Dennis (Appendix, p. 205, line 18 – p. 215, line 9), Newspapers had no choice but to intentionally violate the order of Judge Jefferson in order to challenge it on appeal. At most, therefore, Newspapers were in mere technical violation -- a “Catch 22” situation recognized by Judge Dennis, if not by Metts.  Consequently, Judge Dennis held Newspapers in contempt, but imposed no sanctions for reasons he stated at the hearing (Appendix p. 211, line 21 – p. 212, line 15) and described in his order as follows:

I first took up the Plaintiff’s Motion for Contempt and to Impose Sanctions on Newspapers for failing to comply with a prior Order of Judge Deadra Jefferson in which Judge Jefferson ordered Newspapers to deliver their financial records to the Plaintiff. Newspapers filed a Motion to Reconsider, which Judge Jefferson also denied by Amended Order filed on October 24, 2004. Mr. DeAntonio argued that harsh sanctions should be imposed, including dismissing the newspaper’s answer.

Newspapers strongly believe the issuance of the Order requiring production of sensitive financial information, particularly in First Amendment litigation, without any ruling on relevance or requiring a showing of constitutional actual malice sets a dangerous precedent.

Defendants have not refused to comply with the Order, but seek to appeal the mere issuance of the Order. They are prevented by law from complying if they wish to exercise their right to contest this dangerous precedent.  Thus, they must intentionally choose noncompliance to avoid waiver and mootness. Newspapers cite the holding of Tucker v. Honda of South Carolina Mfg., Inc.,  354 S.C. 574, 577, 582 S.E.2d 405, 406 - 07 (S.C. 2003) as the basis for their decision to consent to a contempt citation to preserve their rights:

. . . an order compelling discovery does not ordinarily involve the merits of the case and may not be appealed. See Ex parte Whetstone, 289 S.C. 580, 347 S.E.2d 881 (1986). Since a contempt order is final in nature, an order compelling discovery may be appealed only after the trial court holds a party in contempt. See Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999). Thus, a party may comply with the order and waive any right to challenge it on appeal or refuse to comply with the order, be cited for contempt, and appeal. See Ex parte Whetstone, supra.

Newspapers contend such disobedience may technically constitute contempt, but it does not follow that serious sanctions should follow from such a finding.

I agree. Newspapers have a right to challenge what they contend is an unlawful Order and our appellate courts have laid out the procedure for doing just that. I find the Newspapers are in contempt of court, but impose no sanctions under these circumstances. Plaintiff’s, not wishing to go forward with the Newspapers’ Motion for Summary Judgment, such motion should be rescheduled as soon as possible, but the trial should be stayed until the Newspapers’ Motion for Summary Judgment is heard.

It is, therefore,

ORDERED, that Newspapers are in contempt of the Order of this Court filed on August 26, 2004, and an Amended Order filed on October 26, 2004 in response to Newspapers’ Motion for Reconsideration. For the foregoing reasons, I impose no sanctions on Newspapers for their contempt. However, if Newspapers do not appeal this Order of Contempt in a timely manner, Plaintiff may once again move for sanctions. It is,

FURTHER ORDERED, that the trial of this case is continued until after Newspapers have a hearing on their Motion for Summary Judgment.

(Appendix, pp. 11-12)

It is a well settled and often cited principle that the imposition of sanctions for violation of a court order is a matter left to the lower court’s discretion. In QZO, Inc. v. Moyer, 358 S.C. 246, 594 S.E.2d 541 (Ct.App. 2004), the Court of Appeals stated:

The decision of whether or not to award sanctions is generally entrusted to the discretion of the trial court. See Fields v. Regional Med. Ctr. Orangeburg, 354 S.C. 445, 581 S.E.2d 489 (Ct.App.2003)(decision of what kind and whether to impose discovery sanctions is left to sound discretion of  the Circuit Court); Karppi v. Greenville Terrazzo Co., 327 S.C. 538, 489 S.E.2d 679 (Ct.App.1997) (noting that imposition of sanctions is generally entrusted to sound discretion of Circuit Court); see also Stone v. Reddix-Smalls, 295 S.C. 514, 369 S.E.2d 840 (1988) (stating that contempt decision should be reversed only when without evidentiary support or upon an abuse of discretion by the trial court). An appellate court will not disturb this decision unless the trial court abused its discretion. Griffin Grading & Clearing, Inc. v. Tire Serv. Equip. Mfg. Co., 334 S.C. 193, 511 S.E.2d 716 (Ct.App.1999); see also Karppi, 327 S.C. at 542, 489 S.E.2d at 681 (stating that trial court's exercise of its discretionary powers with respect to sanctions imposed in discovery matters will be interfered with by the Court of Appeals only if abuse of discretion has occurred).

Id. at 255-56, 546-47; see also Browning v. Browning, 366 S.C. 255, 621 S.E.2d 389 (Ct.App.2005), citing Hawkins v. Mullins, 359 S.C. 497, 597 S.E.2d 897 (Ct.App.2004) (Even though a party is found to have violated a court order, the question of whether or not to impose sanctions remains a matter for the court's discretion) and Townsend v. Townsend, 356 S.C. 70, 73, 587 S.E.2d 118, 119 (Ct.App.2003) (An abuse of discretion occurs either when the court is controlled by some error of law or where the order, based upon findings of fact, lacks evidentiary support.)

Metts contends Judge Dennis abused his discretion “with respect to sanctions when it allowed the summary judgment motion to go forward.” (Metts’ brief of petitioner, p. 18)

The lower court retained jurisdiction to hear the summary judgment motion and ordered that it should proceed. That is no evidence of an abuse of discretion. It is evidence of the use of common sense in the furtherance of judicial economy. The granting of the motion for summary judgment consolidated the two appeals.

IV. The Court of Appeals interpreted the facts and circumstantial evidence contained in the parties’ briefs and properly applied the principle of constitutional actual malice incorporated in numerous appellate court decisions, including Anderson v. Augusta Chronicle.

There is a newsroom adage, “if reporters and editors did everything they could to a story, a newspaper would never get out the door.” Admittedly, through the use of hindsight, there will always be evidence that the reporter and publisher could have done more before sending the newspaper to the printing press. Newton v. National Broadcasting Co., Inc., 930 F.2d 662, 683 (9^th Cir. 1990) (“Newspapers might never be published if they were required to guarantee the accuracy of every reported fact; time and manpower do not permit the type of verification that would prevent all mistakes.”)

Tellingly, both the lower court and the Court of Appeals found such circumstantial evidence in the instant case. When the reporter received the official public record containing the list of property owners contracting for work performed by county employees, and Metts’ name was missing, the reporter could have investigated further. The Court of Appeals determined “Metts’s claim of actual malice in this case hinges on the reporter’s failure to investigate Mims’s story after receiving a document that apparently contradicted  Mims’s statement.” Metts v. Mims, 370 S.C. 529, 537, 635 S. E.2d 640, 644 (Ct.App. 2006) The Court of Appeals reviewed the reporter’s duty to investigate as follows:

. . . Further, as the South Carolina Supreme Court reiterated in Anderson, failure to investigate in and of itself is insufficient to establish that a defendant “ ‘recklessly disregarded’ the falsity of a published article.” 365 S.C. at 598, 619 S.E.2d at 876 (“[T]he reckless conduct contemplated by the New York Times [Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed2d 686 (1964)] standard ‘is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.’ ”) (citations omitted).

Rather, the actual malice standard is governed by a subjective standard that tests a defendant’s good faith belief in the truth of the published statement.  Elder v. Gaffney Ledger, 341 S.C. 108, 114, 533 S.E.2d 899, 902 (2000).  Additionally, South Carolina has declined to impose rigorous investigatory duties for members of the press.  Anderson, 365 S.C. at 596, 619 S.E.2d at 431.  Therefore, in order to establish recklessness there must be an “extreme departure from the standards of investigation and reporting ordinarily adhered to by reasonable publishers.”  Id. (citing Peeler v. Spartan Radiocasting, Inc., 324 S.C. 261, 266, 478 S.E.2d 282, 285 (1997)).  The complaining party must show sufficient evidence to conclude that “the defendant in fact entertained serious doubts as to the truth of his publication.”  St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).

 The Court of Appeals correctly affirmed the lower court in holding that while the reporter’s action may have been negligent under the facts of the case, it did not rise to the level of constitutional actual malice. If every reporter’s mistake, or failure to investigate, or to reconcile divergent statements of public officials or contradictory statements of public officials and public documents, rose to the level of constitutional actual malice, and thus formed the basis of a protracted, years-long lawsuit, the viability of newspapers, especially small-town newspapers, would be in peril. Surely, many newspapers would be hard pressed to report on matters of public interest and concern under those conditions. The 4^th Circuit Court of Appeals recognized this dilemma in Carr v. Forbes, Inc., 259 F.3d 273, 283 (4^th Cir. 2001) when it said:

[T]the first Amendment does not require perfection from the news media. Were the press subject to suit every time it erred, it would decline to speak out without resorting to the sort of cumbersome due diligence common in security offerings. For this reason, the Constitution provides the press with a shield whereby it may be wrong when commenting on acts of a public figure, as long as it is not intentionally or recklessly so.

The Newspapers

Newspapers publish The Berkeley Independent and the Goose Creek Gazette. Both are weekly newspapers with their principal offices in Moncks Corner and Goose Creek, respectively. Newspapers are subsidiaries of Evening Post Community Publication Group whose parent corporation is the Evening Post Publishing Company (“Evening Post”). The two newspapers cover and report on many issues of interest to their readers, primarily located in Berkeley County, including the acts and actions of public officials in Berkeley County government. At the time of the filing of this lawsuit and until her recent death, Mims was an elected member of Berkeley County Council. (Appendix p. 267, lines 1-25; p. 268, line 13 to p. 276, line 22; Mims deposition, Appendix p. 398, line 7 to p. 400, line 21)

The newspapers are printed on the presses of Evening Post in Charleston at a scheduled run time. The deadline to get the newspaper sent to Evening Post presses via computer modem is late Monday afternoon. Mondays were very busy days for newspaper employees and especially the reporter in question, Ms. M. Linda Ensor. She edited all sports stories and wrote all the weekend crime articles. In addition, she was responsible for all of section A which comprised eight pages. Given the time constraints in getting the paper to press at its scheduled run time, Mondays were always a stressful situation. (Appendix p. 282, line 4 to p. 286, line 18)

The article

In July and August 2003, Newspapers published an article under the headline, “[I]t was helpful, but was it legal.” The sub-head stated, “[P]rivate work done by county employees draws fire.” The article was written by Ensor, an employee of Berkeley Independent Publishing Company, Inc. (Article, Appendix p. 484; Appendix p. 276, lines 2 to 5) 

Ensor interviewed members of Berkeley County Council and other public officials to get their input and thoughts on Berkeley County’s policy of allowing its employees to work on private property in competition with private businesses. The public officials interviewed or named in the article included the following: Jim Rozier, Steve Davis, Judith Spooner,  Milton Farley, William Crosby, Caldwell Pinckney and Judy Mims.

As noted, the subject matter of the article was a work policy that allowed public employees to work on private property. The policy was approved by County Council and had the blessing of the County’s attorney. Prior to the article, Jim Rozier, the then Berkeley County Supervisor, had received public criticism over the policy. (Appendix p. 427, line 22 – p. 430, line 8) Accordingly, the policy was clearly newsworthy as a matter of public interest and concern.

Metts contends a partial sentence in the article of which Mims was the source libels him. The alleged defamatory statement is, “. . . but Mims reports that a constituent called to tell her about seeing county trucks in Robbie Mett’s driveway in Pinopolis, and employees cutting limbs from trees in his yard.” (Amended Complaint, para. 7, Appendix p. 37)

Ensor interviewed Mims for the article when the latter stopped by The Berkeley Independent offices on Monday, July 28, 2003. Mims had gone to deliver ads for her real estate company. Noticing the publisher, Bill Collins, in his office, she went in to complain about Ensor’s failure to report a county council vote to ask the Attorney General for an opinion on the controversial work policy. Mims stated that Rozier’s tie breaking vote resulted in the failure of the motion.  Mims thought it should have been reported by the newspaper. (Appendix p. 403, line 11 to p. 415, line 3)

Following the meeting in Collins’s office, Ensor and Mims had a conversation in Ensor’s office. Ensor had written much of the article in question and was waiting for a list of people for whom the county had done work on their private property that was being sent from Rozier’s office. (Appendix p. 281, line 20 to p. 283, line 3) Ensor was seated at her desk. On it was a computer. When Mims made the statement that appears in the article, she typed it verbatim as Ms. Mims uttered it. (Appendix p. 285, line 24 – p. 286, line 18; p. 300, line 13 to p. 316, line 3)

When Ensor was writing the article, she spoke with Mims in her role as a member of County Council. She was not interested in what Mims thought about the work policy in her private and personal life. She believed that someone had reported to Mims what Mims told her, which was the statement in the article. She had no reason to doubt the veracity of Mims. She believed she had an accurate quote from a county council member about another public official. (Appendix p. 317, line 5 – p. 318, line 16; p. 322, line 21 – p. 323, line 3)

Rozier spoke to Mims on the date the article was published. They were in Hilton Head where they were attending a meeting of the South Carolina Association of Counties.  Rozier had read the article on the drive to Hilton Head and asked Mims why she said the things about Robbie Metts. Mims informed him a constituent had told her. Rozier assumed there would be employees in the yard if there were County trucks there. (Appendix p. 433, line 11 – p. 438, line 1)          

Ms. Mims asked to alter her statement

Mims called Ensor from Hilton Head claiming she was misquoted. Although Ensor disagreed with her, she agreed to Mims’ request to run a correction. On the following Monday, Ensor also talked to Metts upon his return from a vacation following the Hilton Head conference. She asked Metts if he would like to give his side of the story in the newspaper on the comments made by Mims in her statement. Metts told her that he would be consulting an attorney as there was no truth to it. (Appendix p. 298, line 9 – p. 299, line 25)

According to Ensor, she was not surprised when Mims called her to deny a part of the statement.  In her experience, it was not unusual for people to call after publication to deny saying what was in print. This had never been a major problem since the paper would run a clarification or correction if requested. (Appendix p. 320, line 3 – 18)

Ms. Mims’ source was Claudette Lusk

Claudette Lusk, a former employee of Mims’ real estate firm was the constituent referred to in the alleged defamatory statement.  Ms. Mims recalls her conversation with Lusk as follows:

Q What was -- what were the circumstances of your conversation with Ms. Lusk concerning county trucks in Robbie's yard?

A. Well, I was in the office, and she was to go and pick up a sign or deliver a sign -- I'm not sure which it was.  And when she came back in, she stopped me and said, "What is county trucks doing in Robbie's yard?" And I said, "I have no idea." And that's when she proceeded to say, well, you know, she saw the trucks in his yard. I said, "Where were they?" She said, "In his driveway," which, you know...(interrupted by attorney asking next question)

(Appendix p. 421, lines 12 – 25)

Subsequently, Lusk denied she said the trucks were Berkeley County trucks in Metts’ yard. Mims believed Lusk left her employment without any notice because of guilt over recanting what she had told Mims. (Appendix p. 422, line 16 – p. 424, line 3)

Example of why newspapers must have protection

What Lusk told Mims is an excellent example of why newspapers must have constitutional protection if they are to report on matters of public interest and concern. In addition to Mims’ version of her conversation with Lusk, and what Lusk told her, which formed the basis of Mims’s statement to Newspapers, the testimony includes two other versions.  First, Lusk testified as follows:

Q. I see. Let me back up. Did you have an occasion to ever have a discussion with Mrs. Mims about a vehicle being in the yard of Robby Metts?

A. Yes.

Q. Tell me about that.

A I don't remember the exact date or time or anything like that, but I had to take up a sign from a property that we had sold in Pinopolis, so I went to the property to remove the sign On my way back to the office, I noticed there was a truck at Robby's – in - Robby's yard parked over on the side of the yard. When I came back to the office, I told Mrs. Mims that there was a truck in Robby's yard. She asked what type of truck, and I told her it was similar to the ones Home Telephone used with a bucket on the back like a boom truck, whatever they are called, and that was basically the end of our -- she asked what -- you know, if I knew what type of truck it was or what -- if it had on it and I said there was no writing on the truck. And then she picked up the phone and made a phone call.

(Appendix p. 325, line 13 – p. 326, line 7)

Q. Now, did you see any people in or about he truck?

A. No, sir.

Q  Nobody?

A. No.

(Appendix p. 328, lines 1 to 5)

Then, there was Metts’ version of what Lusk told him she said to Mims.

Q. What did she [Lusk] relate to you she told her?

A. She told me that it was one day at that time week or so back that she had to pick up a real estate sign down the street from me and that she passed by it picking up the real estate sign and that she noticed that there was a big white truck in my yard, boom truck, and that there were guys out there cutting limbs out of my tree in the front yard. So she came back.  She noticed it.  She told me she noticed it going to get the sign and then coming back.  When she got back to the office, she made, she said, a general statement that, oh, I see that Robbie's doing some landscaping in his yard.  I noticed there was a white truck, a boom truck, bucket truck, in his yard cutting limbs out of the yard.  I think, as she says, Ms. Mims asked her what kind of truck it was.  And she said, well, I don't know what kind of truck it was.  It was a white truck, but it didn't have an emblem or logo on the side.  It was a white truck.  She said that Ms. Mims inferred from that and said, oh, that must be a county vehicle.  Then Claudette said she walked back to her office and Ms. Mims immediately got on the telephone and called someone.  She didn't know who it was. She had called me because she wanted me to know that she did not tell Ms. Mims that it was a county vehicle.  She also said, you know I work for Ms. Mims and I would like you to keep this confidential.  I told Claudette, well, I don't know that I can do that, Claudette.  I don't know where I am and what has to be done, but what I do know is that I have to try to clear my name and protect my integrity.  She said, well, I understand, but I hope you can keep this confidential.  I said, well, I can't promise you that.  She said again, I understand, you do what you feel like you have to do.  And then the conversation ended.  (brackets and underline added)

(Appendix p. 389, line 6 – p. 390, line 19)

Ensor wrote in the article that Mims said a constituent told her there were workmen in Metts’ yard.  Lusk denied telling Mims there were any workers on the property. Based on Lusk’s assertion, Mims’ asked Newspapers to allow her to correct her statement about workers being in Metts’ yard. The following appeared in the August 6, 2003 edition of The Berkeley Independent.

- Correction –

In a phone call on Monday, Berkeley County Councilmember Judy Mims asked The Independent to correct something she said in a story entitled, “It was helpful, but was it legal?” in last week’s paper. She was quoted as saying that “a constituent has seen county trucks in Robbie Metts driveway in Pinopolis, and employees cutting limbs from the trees in his yard.” Mrs. Mims told The Independent she would like to correct that to say simply that constituents told her they had seen county trucks in his yard.

Metts told The Independent that what was reported “was not the least bit accurate.”

Thus, for a second time, Mims made the statement about county trucks being in Metts’ yard. Metts, however, subsequently testified that Lusk told him that she saw a truck and workers. Furthermore, Ensor included Metts’ denial of Mims’ statement. Had Ensor intended to purposely avoid the truth when she published the article, she would not have included Metts’ denial. Subjecting the press to liability in such a situation would seriously jeopardize their ability to report on matters of public concern.

No problems between Metts and Newspapers

Metts had never had any problems with Newspapers or their employees. (Appendix p. 384, line 24 – p. 386, line 3) Rozier also stated that he had never heard an unkind word between Metts and Mims. (Appendix p. 449, lines 18 – 25)   In fact, Metts’ mother and Mims were old friends. (Appendix p. 387, line 16 – p. 388, line 3)  Likewise, Ensor testified that she had a good relationship with Rozier and Metts. (Appendix p. 321, lines 7 - 23) There was no evidence of ill will between Metts and Newspapers.

Summary judgment in First Amendment Cases   

The Honorable Roger M. Young held the hearing on Newspapers’ Motion for Summary Judgment. He came to court having read everything submitted to him. He was fully cognizant of the law and the facts in the lawsuit and the issues before him. (Appendix p. 126, line 1 – p. 135, line 9; p. 165, lines 4 - 13) During the hearing, he assumed the worst case factual scenario against Newspapers and Mims. (Appendix p. 131, line 2 – p. 135, line 9; p. 159, line 24 to p. 160, line 13)

The record further reflects that the lower court judge properly recognized the importance of a summary judgment motion in a First Amendment case and the appellate courts admonition that summary judgment affords constitutional protection in the appropriate First Amendment case. (Appendix p. 168, line 9 to p. 170, line 10) As recognized by the Supreme Court in George v. Fabri, 548 S.E.2d 868, 345 S.C. 440 (2001) and McClain v. Arnold, 275 S.C. 282, 270 S.E.2d 124, 6 Media L. Rep. 1831 (1980), lower courts must pay something more than lip service to the Bill of Rights.  To wit:

The presence or absence of actual malice is a constitutional issue and “where a publication is protected by the New York Times immunity rule, summary judgment, rather than trial on the merits, is a proper vehicle for affording constitutional protection in the proper case.” Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 864-865 (5th Cir. 1970). Unless the trial court finds, based on pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice, it should grant summary judgment for the defendant. Wasserman v. Time, Inc., 424 F.2d 920, 922 (D.C. Cir. 1970) (Wright, J., concurring).

The present case especially invited scrutiny at the summary judgment stage. All witness depositions were transcribed and in the hands of attorneys, as was the evidence to be introduced at trial. Thus, the matter was fully ripe for disposition.

Constitutional actual malice

As recognized by the courts, “the standard of [constitutional] actual malice is a daunting one.” McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996). “Few public figures have been able clearly and convincingly to prove that the scurrilous things said about them were published by someone with ‘serious doubts as to the truth of his publication.’” McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1516 (D.C. Cir. 1996) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325-26 (1968) ).

Under the First Amendment, a public figure or public official cannot recover for a false and defamatory statement unless he can prove that a defendant published the statement with “[constitutional] actual malice,” that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Elder v. Gaffney Ledger, 341 S.C. 108, 533 S.E.2d 899 (2000), Masson v. The New Yorker Magazine, 501 U.S. 496, 510, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991) New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).  Importantly, the actual malice standard focuses solely on the defendant’s actual state of mind “at the time of publication.” Bose Corp. v. Consumers Union of U.S. Inc., 466 U.S. 485, n. 30, 104 S.Ct. 1949, 1965 n. 30, 80 L.Ed.2d 502 (1984); McFarlane v. Sheridan Square Press, 91 F.3d 1501, 1508 (D.C.Cir. 1996) (“the inference of actual malice must necessarily be drawn solely upon the basis of the information that was available to and considered by the defendant prior to publication.”)  This high barrier to recovery by public figure libel plaintiffs is necessary to guarantee “the national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open ... .” New York Times, 376 U.S. at 270. “Whether a communication is reasonably capable of conveying a defamatory meaning is a question of law for the trial court to determine.” Elder, at 113, 533 S.E.2d at 901-902, see also, Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)

Reckless disregard

Absent proof that the publisher was actually aware that the contested publication was false, the plaintiffs must establish that the defendant published a statement with “reckless disregard” for the truth.  

A ‘reckless disregard’ for the truth, however, requires more than a departure from reasonably prudent conduct.  ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)  There must be evidence the defendant had a ‘high degree of awareness of ... probable falsity.’  Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (emphasis in original)

Elder, 341 S.C. at 114, 533 S.E.2d at 902

As the Supreme Court acknowledged in St. Amant,this overwhelming burden is required by the First Amendment to insure publication about public affairs.  In the words of the Court:

It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant's testimony that he published the statement in good faith and unaware of its probable falsity.... New York Times [v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)] and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.

St. Amant,  390 U.S. at 731-32, 88 S.Ct. at 1325-26.

In Peeler, infra, several United State Supreme Court decisions were cited to further define the high threshold of liability when the constitutional actual malice standard is applicable.  Specifically:

Actual malice is a subjective standard testing the publisher's good faith belief in the truth of his or her statements. The publisher must have entertained serious doubts as to the truth of his publication. St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). . . "Mere negligence does not suffice." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991).

Peeler, 324 S.C. at 266, 478 S.E.2d at 284.

This subjective standard of the publisher’s awareness at the point of publication means that even proof of “highly unreasonable conduct constituting an extreme departure from standards of investigation and reporting ordinarily adhered to by responsible publishers” will not be sufficient to prove actual malice. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 663, 64 (1989) [quoting Curtis Pub. Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (opinion of Harlin, J)]; see also, Peeler, 478 S.E.2d at 284.  Likewise, “errors of fact caused by negligence” are not compensable under New York Times Rule.  Time, Inc. v. Pape, 401 U.S. 279, 292, 91 S.Ct. 633, 640, 28 L.Ed.2d 45 (1971).  As the Supreme Court in Bose specifically recognized, “there is a significant difference between proof of actual malice and mere proof of falsity.” 104 S.Ct. at 1965

Direct and circumstantial evidence

The requisite awareness or existence of doubt may be proved by both direct and circumstantial evidence. St. Amant,390 U.S. at 732. Case law outlines three types of circumstantial evidence that can support a finding of actual malice: evidence establishing that the story was (1) “fabricated,” (2) “so inherently improbable that only a reckless man would have put [it] in circulation,” or (3) “based wholly on” a source that the defendant had “obvious reasons to doubt,” such as “an unverified anonymous telephone call.” McFarlane v. Sheridan Square Press, Inc., 91 F.3rd at 1512-13 (quoting St. Amant, 390 U.S. at 732).

Duty to investigate or to verify

Our courts have on several occasions addressed the parameters of a publisher’s duty to investigate and verify the accuracy of the source’s information.  In doing so, the courts have limited the importance of the degree of care utilized by a publisher of a constitutionally protected publication, such as the article in this lawsuit. For example, in            

In George v. Fabri, infra,the court noted that:

The failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. Elder, 341 S.C. at 114, 533 S.E.2d at 902 (citing St. Amant, supra ). However, actual malice may be present where the defendant fails to investigate and there are obvious reasons to doubt the veracity of the statement or informant. Id. Furthermore, ‘[a]lthough it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry, courts should be careful not to place too much reliance on such factors.’ Elder, 341 S.C. at 117, 533 S.E.2d at 904 (citing Harte-Hanks, supra)(emphasis in original)

George, 345 S.C. at 458, 548 S.E.2d at 878 

Similarly, in the Elder decision, it was observed that:

The actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.   Harte-Hanks, 491 U.S. at 666, 109 S.Ct. 2678.   It is insufficient to show the defendant made an editorial choice or simply failed to investigate or verify information; there must be evidence at least that the defendant purposefully avoided the truth.   Gaylord Broadcasting v. Francis, 7 S.W.3d 279 (Tex.App.1999);  ABC, Inc. v. Gill, 6 S.W.3d 19 (Tex.App.1999).

Elder,  341 S.C. at p. 114, 533 S.E.2d at 902

Positions of the parties

Newspapers set out the positions of the Newspapers and Metts to the Court of Appeals. For purposes of the summary judgment motion, and in the light most favorable to Metts, the Newspapers conceded the statement made by Mims to Newspapers’ reporter was false although this was far from certain based on the testimony. The reporter accurately reported what Mims told her, however. (Appendix p. 129, line 1 to p. 131, line 1; 287, lines 3 – 9) Assuming the falsity of the statement, Newspapers advanced two arguments. First, the statement was not defamatory. Allowing county workers to do work on private property was a policy approved by County Council and the Berkeley County Supervisor, and blessed by the County attorney. (Appendix p. 427, line 22 – p. 429, line 14) How then could the statement that Metts had county employees working on his property be defamatory, even if incorrect? Secondly, Metts was a public official and the conduct of the Newspapers and their reporter did not approach the daunting standard of constitutional actual malice. The lower court judge agreed with Newspapers on the second ground. Consequently, there was no need to decide if the statement was actually false and defamatory.

Both in oral argument and in his Brief to the Court of Appeals, Metts claims there was reckless disregard by Newspaper because Ensor purposely avoided the truth in two instances. The first relates to her receipt of a list of citizens who had contracted with the county to have work performed on their property by county employees.  This list was provided by an employee in Rozier’s office via fax to The Berkeley Independent’s graphic designer.  The list was inserted into the article by the designer and read by Ensor when she subsequently proofed the article prior to sending it to the Evening Post for the press run.

Ensor noticed the list of people contracting for work to be done by county employees did not contain Metts’ name. This public document appeared to conflict with the statement made by Mims, a public official. Under pressure to get the newspaper to the press on time. Ensor decided to print the article with both the Mims statement and the list provided by the County Supervisor’s office.  She testified that, when she made the decision to send the newspaper to press with the article as written, she did not doubt Mims’ statement. (Appendix p. 141, line 17 to p. 158, line 19; Appendix p. 282, line 4 to p. 287, line 9)

On this salient point, the following exchange took place between Ensor and the attorney for Metts at her deposition.

Q. You didn’t doubt it?

A. No.

Q. Why Not?

A. Ms. Mims was a county official, and I had no reason to think that she would not tell me what she believed. She said that several people had told her that, and I didn’t doubt it.

(Appendix p. 287, lines 3 – 9)

Given the absence of any evidence suggesting that Mims was a wholly unreliable source or that her statement was inherently improbable, this belief insulates Newspapers from any liability.  Furthermore, the reporter ensured a balanced presentation to the public by including the list produced by the County Supervisor.  In such instances, the law does not require a newspaper to resolve conflicts between statements from elected public officials about another public official. By publishing these competing statements, verbatim as they were received, and subjecting them to public scrutiny, Newspapers were simply pursuing their essential and constitutionally protected role in our democracy.

In addition, Metts espouses the “bad blood” theory between Mims and Rozier as grounds for Newspapers’ liability. Rozier was asked about his relationship with Mims at his deposition. Rozier said they had a good relationship at one time, but that it deteriorated. He no longer had a good relationship with Mims. They did not talk with one another except when it was necessary at council meetings. Rozier testified that he was comfortable with the relationship and hoped that Ms. Mims was equally comfortable. (Appendix p. 449, line 8 – p. 451, line 16)  

In any event, the purported existence of “bad blood” between Mims and Rozier is simply immaterial.  Even if knowledge of a poor relationship between Mims and Rozier could somehow be imputed to Newspapers,[4] reliance on an allegedly biased source does not constitute legally sufficient evidence that the journalist had serious doubts as to the source’s credibility or the accuracy of the information. See St. Amant, 390 U.S. at 730, 733.  Indeed, if the press could not publish statements from official government sources with contrary (and often heated) political inclinations, coverage of governmental affairs would be significantly impaired.  The freedom of the press guarantied by the First Amendment is simply inconsistent with such restraints.  

CONCLUSION

For the foregoing reasons, Newspapers respectfully request that this Court affirm the opinion of the Court of Appeals.

[1] Metts voluntarily withdrew the civil conspiracy cause of action.

[2] Newspapers’ brief filed with the Court of Appeals describes the events leading up to the March 8, 2005 hearing before Judge Dennis and why Newspapers believed they had no alternative but to ask to be held in contempt in order to challenge the issuance of what they perceived to be an unjust and unfair order.  (Appendix pp. 509 – 516).

[3] Metts’ brief of petitioner, p. 13: “The opinion of the Court of Appeals reflects that Judge Dennis’ order holding Respondents’ Motion for Summary Judgment in abeyance was not a final order because it was merely an oral ruling from the bench and not entered by the clerk of court. This finding contradicts the record in this case. Page 19 of the Appendix is the written form order entered on March 8, 2005 by  Mary P. Brown, Clerk of Court for Berkeley County.”

  Metts’ brief of petitioner, p. 14:  “Further, [Judge Dennis’ order dated April 28, 2005] did not amend the form order filed on March 8, 2005.”

[4] . . . actual malice is a First Amendment protection predicated on a subjective state of mind, Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9, 99 S.Ct. 2675, 2680 n. 9, 61 L.Ed.2d 411 (1979) (citing New York Times), which surely cuts against any extension of vicarious liability beyond respondeat superior. Because we doubt that actual malice can be imputed except under respondeat superior, and because in any case [plaintiff] presents no evidence showing [publisher's] supervision of the process by which [author] turned raw data into finished article (as distinct from control over his final product), cf. Restatement of Agency 2d § 14 N cmt. b, we conclude that [plaintiff] may show [publisher's] malice only through evidence of the information available to, and conduct of, its employees.

McFarlane v. Esquire Magazine, 74 F.3d 1304.