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Daniel Connaughton v. Harte Hanks Communications, Inc.
Citations: 842 F.2d 825; 1988 WL 4768Docket: 86-3170
Court: Court of Appeals for the Sixth Circuit; April 4, 1988; Federal Appellate Court
Appellants contest the scope of appellate review regarding a jury's libel verdict against a publisher, emphasizing the need for an independent examination of the record to protect First Amendment rights as established by Supreme Court precedents. The court must balance First Amendment protections with an individual's reputation, recognizing the tension between these interests. The review process is complicated by the standards of appellate review, specifically the "clearly erroneous" standard, which limits the court's ability to overturn jury findings unless they are demonstrably incorrect. The Supreme Court mandates that in cases involving actual malice, appellate courts must thoroughly assess the entire record to ensure that the judgment does not infringe upon free expression rights. This dual obligation reflects the judiciary's careful consideration of both factual determinations and constitutional protections in libel cases. Guidance for resolving legal conflicts is drawn from the precedent set in Bose Corp. The standard of review must respect both Rule 52(a) and the independent review standard established in New York Times Co. v. Sullivan. The apparent conflict between these rules is clarified through their complementary nature; while New York Times emphasizes an independent review of the entire record, Rule 52(a) does not prohibit such a review and allows for findings to be deemed 'clearly erroneous' if the reviewing court is firmly convinced a mistake was made. Rule 52(a) also requires that the trial judge's ability to observe witness demeanor is duly considered, aligning with the independent review standard. In this case, the court first examines the complete record of operative facts to determine if the jury's findings were clearly erroneous. The context involves a political campaign for a judgeship, with plaintiff Daniel Connaughton, a notable attorney and former prosecutor, declaring his candidacy against incumbent James Dolan, who was endorsed by the local newspaper, the Journal News. Connaughton’s announcement prompted Dolan to run as an Independent to avoid a primary election. The campaign initially lacked excitement but escalated into a significant contest by September. Connaughton acknowledged he was a 'public figure' under Supreme Court definitions, thus bearing the burden to prove that a November 1, 1983, article published about him was defamatory and published with 'actual malice,' meaning with knowledge of its falsity or with reckless disregard for the truth. The plaintiff's evidence revealed that prior to Connaughton's candidacy announcement, persistent rumors circulated in Butler County regarding Billy New, the Director of Court Services, alleging corrupt practices in his official capacity as a Dolan appointee. After announcing his candidacy, Connaughton criticized Dolan for managing a high volume of cases privately rather than in open court and for leniency in DWI cases, but did not reference the corruption rumors. On September 8, 1983, June Taylor of MADD recommended that Connaughton's wife, Martha, contact Patty Stevens, who had significant information about her ex-husband's treatment in the Hamilton Municipal Court. On September 15, Martha visited Stevens, who indicated she would inform Martha if she chose to disclose her information regarding court administration. On September 16, Stevens arranged a meeting with Connaughton for after her work shift. Stevens and her sister arrived at the Connaughton residence around 12:30 a.m. on September 17, where Connaughton had gathered witnesses and requested the conversation be recorded. For three and a half hours, Stevens detailed extensive events where New solicited and accepted bribes for favorable court decisions, often in Dolan's chambers. Thompson also shared her experience of receiving lenient treatment from Dolan, but her contributions were limited. Connaughton faced a significant ethical dilemma following disclosures from Stevens regarding alleged criminal activities. He recognized his obligation as a lawyer to report these allegations to the appropriate authorities promptly, despite the risk of political repercussions before the November election. Lacking a means to assess the credibility of Stevens and Thompson, he sought advice from the Butler County prosecutor on September 19. The prosecutor recommended processing the interview tape through local law enforcement and initiating a routine investigation, which included arranging polygraph tests for Stevens and Thompson. The polygraph indicated Stevens was truthful, while Thompson declined the test. As allegations of corruption against New emerged, he resigned as Director of Court Services on September 22, 1983. On September 27, after verifying Stevens' credibility, Connaughton submitted the tape to the Hamilton Public Safety Director and filed a complaint alleging that New had accepted bribes from criminal defendants. This led to a police investigation and New's arrest on October 3, resulting in three bribery charges and an indictment by a Butler County Grand Jury. Dolan publicly dismissed Connaughton's actions as 'dirty politics.' In response, Connaughton wrote a letter published on October 20 that outlined the information he received and the steps taken to corroborate the allegations, which led to New's arrest. On October 25, Dolan sought to counteract negative press from the Enquirer regarding his judicial conduct by collaborating with Jim Blount of the Journal to ensure positive coverage of his activities. The Enquirer published a critical front-page article on October 27, highlighting Dolan's controversial practices, which Blount later recognized as a significant and widely noticed story about the Municipal Court. Prior to the Enquirer story on October 27, Blount and Joseph Cocozzo met with Billy New's defense counsel, Hank Masana, at his request. Masana informed them that Thompson intended to disclose promises made by Connaughton for unfavorable information regarding the Hamilton Municipal Court and Connaughton's plans to confront Dolan with the Stevens-Thompson tape to force Dolan's resignation in favor of Connaughton. This meeting was arranged by Creton, a friend of Dolan, who had asked Connaughton to withdraw from the judicial race to help ensure Dolan's re-election. The meeting took place on the same day the Enquirer published its story about Dolan and included Thompson, Masana, Blount, and Pamela Long from the Journal. During the interview, Blount was aware of the context and Thompson's subpoena to the Grand Jury. Masana led the questioning, refreshing Thompson's memory with suggestions. Before recording, Blount and Long assured Thompson that her accusations would remain confidential. Thompson accused Connaughton of making incriminating promises during a September 17 meeting, including a vacation, a restaurant invitation, and job offers in exchange for damaging information about Dolan and the court. She alleged that Connaughton threatened to make the tape public unless Dolan resigned. These allegations indicated serious ethical violations and potential criminal offenses, including extortion and suborning perjury. Connaughton's evidence highlighted that Thompson was emotionally distressed and resentful due to her subpoena and accusations from friends. She blamed Connaughton for her situation, claiming he lied and failed to protect her anonymity. Thompson acknowledged her criminal history, and Blount was aware of her psychiatric issues related to emotional instability. Thompson aimed to support her claims by having Stevens verify her statements regarding offers made to both of them. However, Stevens refuted these claims and accused Thompson of lying during the trial. Notably, Thompson disclosed that the Enquirer rejected her allegations against Connaughton after she reported them, and that the Hamilton Police also declined to investigate her charges. Following Thompson's interview, Blount assigned Long to write a story based on her information. A subsequent meeting involved Blount, managing editor Walker, and Long, where they discussed Thompson's dubious credibility and decided that no further action would be taken until October 28. On that date, the managing editor organized a meeting to assign reporters to interview individuals present at meetings with Stevens and Thompson, but notably, no one was tasked with interviewing Stevens herself, who could provide critical insight into Thompson's credibility and psychological state. Blount also postponed these interviews until after the publication of his column on October 30. The Journal had previously offered favorable coverage to Dolan, contrasting with its negative portrayal of Connaughton. After the October 27 Enquirer story and Thompson's interview, the Journal's intent to discredit Connaughton became evident. Despite acknowledging the defamatory nature of Thompson’s claims against Connaughton, the Journal did not investigate Thompson’s credibility, leading to the implication that they had already decided to undermine Connaughton and the Enquirer to boost their own circulation. The jury could have inferred that Blount's October 30 column, titled "Municipal Court Race Will Have More Than One Loser," was strategically crafted to prepare the public for charges against Connaughton to be published on November 1. The article positioned the Journal as a protector of public interest, highlighting what it described as Connaughton's "dirty politics" and suggesting that the Enquirer was attempting to undermine Dolan's candidacy. The article's headline and content predicted multiple election losers and encouraged voters to choose "the most honorable and cleanest candidate." By referencing an unnamed source expressing concerns about dishonesty in campaigning, it set the stage for the forthcoming November 1 article's impact on Connaughton's reputation. Blount's piece also attempted to discredit an Enquirer story from October 27 by insinuating a dubious connection between Connaughton and Enquirer decision-makers, despite knowing this rumor to be false after confronting Connaughton. This created a narrative questioning the integrity of the Enquirer’s reporting, labeling it as a smear campaign associated with Dolan. The jury could conclude that the actions of the Journal following the Thompson interview were a façade masking its true intent behind the November 1 defamatory publication. From October 31 onward, the Journal's subsequent actions seemed to align with Blount's predictions. The November 1 article branded Connaughton as deceitful and unethical, echoing the fears expressed in Blount's earlier column. On October 31, Journal editors were aware that all witnesses had denied Thompson's allegations. Blount claimed to have verified Thompson's credibility through other sources, yet evidence revealed contradictions, as his reporter, Grant, stated he had not been tasked with confirming her credibility and had only been checking on the status of an ongoing investigation. On October 31, the Journal conducted an interview with Connaughton under the guise of a final endorsement evaluation, attended by Blount, Cocozzo, and reporter Jeanne Houck. Connaughton and his brother-in-law, Berry, arrived, but the initial discussion revealed no new information. Blount received a phone call that led him to abruptly end the discussion and separate Connaughton from Berry, directing them to different rooms. Connaughton was not informed of the Thompson accusations made on October 27 nor allowed to listen to a tape of that interview. During the interrogation, Connaughton faced questions regarding alleged promises made to Stevens and Thompson, which he denied. He was also asked hypothetical questions intended to extract speculation about his motivations, but his responses did not corroborate the Journal's claims. By the end of the day, the Journal was aware that the Thompson accusations were defamatory, faced significant credibility issues with Thompson, and noted that all interviewed witnesses discredited her claims. The Journal had intentionally omitted interviewing Stevens, who was present during all relevant meetings and could provide insight into Thompson's mental health. Blount acknowledged the lack of investigation into Thompson's credibility and knew Connaughton had denied all allegations when the Journal scheduled a legal conference for the following morning. Cocozzo, Blount, Walker, Long, and Irwin attended a meeting before the Journal's 10:30 a.m. deadline. Irwin admitted he had not listened to key tapes related to Thompson's accusations or the Connaughton interview. He was unaware that no one at the Journal had listened to the September 17 tape, and that all interviewed had discredited Thompson's claims, with no verification of his credibility. Only Blount and Long knew the content of the October 31 Connaughton tape. Irwin relied on Blount's assurances regarding Thompson's credibility without investigating further. He reviewed only the galley sheets before approving the November 1 article, which he found offensive but not libelous due to the inclusion of Connaughton's denials. Although aware of the serious nature of the allegations, Irwin believed the article politically benefited Connaughton, though he did not elaborate on this view. The article was published based on Irwin’s limited review and reliance on Blount's opinion. Following this, Connaughton spent the campaign denying Thompson's accusations, while the Journal published these denials, reinforcing the accusations before endorsing Dolan two days prior to the election. Dolan won the election, and the impact of the Journal's actions on the Enquirer's circulation was not examined in this legal case. The Journal's defense relied heavily on the testimony of its publisher and staff, who previously testified during the plaintiff's case. Their aim was to demonstrate that the Journal acted fairly and impartially throughout its reporting, particularly during the critical period surrounding the November 1st article about Connaughton. The defense emphasized the thoroughness of its investigation and the legal advice obtained prior to publication. They asserted that established guidelines were followed to ensure accuracy and credibility in reporting, and that they were satisfied with the credibility of their source, Thompson. The defendants sought to counter the plaintiff's claims by asserting that the motivation for the November 1st article was not competition with the Enquirer but rather a commitment to public interest. They affirmed the plausibility of Thompson's charges against Connaughton and contended that there was no intent to defame him, highlighting the inclusion of Connaughton's denials in the article as evidence of fairness. The defense's case took a significant turn when defense counsel revealed that Stevens had signed an affidavit alleging that Connaughton had suggested she should benefit financially from the lawsuit and that her sister's accusations against him were true. This revelation shocked both the court and the plaintiff's counsel, who, despite the development, decided to proceed with the trial without conferring privately with Stevens beforehand. Stevens was recalled by the defense and testified consistent with prior in-chambers disclosures, revealing that her family urged her to seek 10% of any recovery. She learned from another sister that both Thompson and her mother were to testify falsely about a promise from Connaughton to pay her if she supported him against Thompson's accusations. Stevens expressed concern about her mother and sister potentially facing legal consequences for perjury, as well as the strain on family relations. Ultimately, she recanted her earlier affidavit, affirming that Connaughton never offered her money and that her initial testimony discrediting her sister was truthful. Connaughton corroborated her testimony and denied any offer of compensation for her statements. The case proceeded to the jury, which was instructed that the plaintiff must prove actual malice by clear and convincing evidence, defined by the court. The jury found in favor of Connaughton, awarding $200,000 in damages, and concluded that the November 1, 1983 article was defamatory, false, and published with actual malice. The defendant, Hanks-Journal, filed a motion for judgment notwithstanding the verdict, which the district court denied, affirming that the jury's verdict was supported by the evidence. The legal standards for public figures in defamation cases, as established by the Supreme Court in New York Times and Gertz, require proof of actual malice, meaning the publication was made with knowledge of its falsity or with reckless disregard for the truth. The Curtis Publishing Co. v. Butts decision reiterated that public figures could only recover if they proved the publication was deliberately falsified or recklessly published despite awareness of probable falsity. The St. Amant v. Thompson ruling emphasized the necessity for the finder of fact to assess the good faith of the publisher and highlighted that mere claims of good faith would not suffice, especially in cases where the story was fabricated or based on unverified sources. Recklessness can be established when there are clear doubts about the informant's credibility or the accuracy of their reports. Malice requires proof that the defendant acted with an improper motive, necessitating a subjective inquiry into the defendant's state of mind. This determination relies heavily on the credibility of witnesses, assessed through direct and cross-examination by a jury, which evaluates their demeanor, testimony reasonableness, memory accuracy, and potential biases. In this case, the jury's focus was primarily on the credibility of the witnesses presented by both parties rather than complex interpretations of the evidence. The significant disparity in the evidence from the plaintiff and defendants indicated that the jury's verdict was predominantly based on credibility evaluations. Had the jury believed the defendants’ evidence, it might have found the Journal's publication of the article was not motivated by a desire to undermine the plaintiff, Connaughton, and could have deemed Thompson's allegations as credible. Ultimately, the jury favored the plaintiff's evidence and found the Journal's article defamatory, adhering to the principle that mere falsehoods do not equal actionable defamation unless they harm the plaintiff's reputation or standing. The court underscored that defamatory publications must be interpreted in a way that reflects how the intended audience would understand them, taking into account various factors such as context, placement, and the overall impression conveyed by the publication. Key considerations include the interactions between editorial management and reporters regarding the development of a controversial story, decisions around selective interviews, and the implementation of those interviews. The credibility and significance of the information used to craft the article must be assessed within the context of the entire publication, not in isolation. The court finds that the article published on November 1 implied that Connaughton was unethical, unfit for the judgeship, and engaged in extortion, which the jury found to be defamatory. The jury also deemed the accusations made by Thompson to be false, as the Journal failed to verify her claims and did not interview key individuals. Connaughton's denials were accepted by the jury as credible, while the Journal's interpretation of his statements was viewed as speculative. The court concludes that the jury's findings regarding the defamatory nature and falsity of the article were not clearly erroneous. The discussion also touches on "actual malice," referencing the Supreme Court's ruling in Bose Corp. v. Consumers Union of United States, Inc., which emphasized that appellate courts must conduct a de novo review of malice determinations, ensuring proper application of constitutional law without reassessing witness credibility. However, the scope of this review and how to handle findings tied to credibility assessments remain unclear. The court distinguishes between "subsidiary facts," which are operative facts relevant to the background and circumstances of the case and require credibility assessments, and "ultimate facts," which reflect legal standards. In the context of a defamation case, the determination of "actual malice" requires judges to assess whether the evidence meets the constitutional threshold for First Amendment protection, rather than leaving this solely to the factfinder. The court must decide whether to independently evaluate each subsidiary fact or to review the jury's findings to confirm they collectively support the conclusion of clear and convincing proof of actual malice. This approach preserves the jury's role and avoids overburdening appellate courts with original jurisdiction over factual determinations. The Ninth Circuit has affirmed that jury findings on subsidiary facts should be treated with deference similar to that afforded to directed verdicts, ensuring that the ultimate conclusion of actual malice is adequately supported by the evidence. A motion for judgment notwithstanding the verdict allows the moving party to have the evidence viewed favorably towards them, with all reasonable inferences drawn in their favor. The judge and appellate court are not tasked with weighing evidence credibility or choosing among legitimate inferences, except when no contrary inference can be drawn. In assessing actual malice, the reviewing court must determine if the jury's findings on subsidiary facts were clearly erroneous, requiring a strong conviction that an error occurred. In the case examined, substantial evidence was found indicating that the Journal exhibited bias against Connaughton in favor of Dolan. This bias was evidenced by the personal relationship between Dolan and the Journal's Editorial Director, as well as the consistently favorable coverage of Dolan compared to the negative coverage of Connaughton. The Journal's rivalry with the Cincinnati Enquirer was marked by hostile public statements from its editorial director, especially following the Enquirer's impactful reporting on Dolan's court operations, which was significant in the Connaughton-Dolan campaign. Additionally, the Journal's efforts to discredit Connaughton were seen as an attempt to undermine the Enquirer's market share, aided by the emotional instability of Thompson, who had a vindictive attitude towards Connaughton. The Journal was aware of Thompson's criminal background and mental health issues, and all witnesses interviewed by Journal reporters contradicted Thompson's claims. The Journal allegedly refrained from interviewing Stephens between October 27 and November 1, 1983, despite knowing that her testimony could either support or refute Thompson's claims. It was aware that Thompson's allegations against Connaughton, which included accusations of unethical conduct and criminal extortion, could severely harm Connaughton's personal, professional, and political reputation. The Journal's prepublication legal review is characterized as insincere. Furthermore, the timing of the initial story's release was strategically planned to align with follow-up articles and editorials aimed at maximizing the impact of its campaign against Connaughton and the Enquirer, particularly just before an election. Upon reviewing the evidence and considering the jury's observations, the appellate court finds no clear error in the jury's factual determinations. The court affirms that the jury properly held the plaintiff responsible for proving actual malice by clear and convincing evidence. Following the precedent set by New York Times v. Sullivan, the court undertakes a thorough legal review to identify any potential errors, particularly those that could arise from misunderstandings of applicable law. The Supreme Court's decision in Herbert v. Lando reinforces that false statements do not enjoy First Amendment protection, and those who disseminate defamatory falsehoods with the necessary culpability may be held liable. This liability serves not only to compensate victims but also to deter the publication of harmful unprotected material, aligning with the principles established in previous rulings. A plaintiff can demonstrate a defendant's subjective state of mind through both circumstantial and direct evidence. Although the principles of libel restrict a publisher's freedom of expression, the court is bound by precedent that a finding of falsity alone does not negate First Amendment protections, particularly for materials of significant public interest. In this case, Connaughton is recognized as a public figure, and the court must consider the constitutional balance between press freedom and defamation. In Curtis Publishing Co. v. Butts, the Supreme Court established that public figures can seek damages for defamatory falsehoods if they show extreme negligence in the standards of reporting, requiring evidence of "actual malice." The court also notes that while Bose mandates an independent review of jury findings related to "actual malice," it does not necessitate a complete reassessment of all subsidiary facts. The appellate review accepts the jury's findings and assesses whether the evidence supporting "actual malice" is legally clear. For libel liability involving a public figure, the defendant must either know of the publication's falsity or act with reckless disregard for the truth, as outlined in Herbert v. Lando. This includes recognizing doubts about the truthfulness of sources or preferring one source over another. Lando provides guidance on the type of evidence necessary for a court's independent judgment regarding actual malice. The court concludes that the factual similarities with Curtis Publishing Co. v. Butts streamline its analysis in this case. In Butts, the Saturday Evening Post published a defamatory article accusing Wallace Butts, an esteemed athletic director, of conspiring to fix a 1962 football game. The article relied on the unverified claims of Burnett, whose credibility was compromised due to prior legal issues. Despite recognizing the need for thorough investigation, the Post failed to adhere to standard journalistic practices, opting to publish based solely on Burnett's affidavit without substantial independent verification. Similarly, the Journal's November 1 article about Connaughton also lacked urgent newsworthiness, allowing time for more rigorous vetting of its contentious source, Thompson. The Journal's motivation appeared to stem from a desire to bolster its political reporting and advantage its favored candidate, Dolan, in an upcoming election. The court found that both publications exhibited extreme negligence and a departure from responsible reporting standards. Ultimately, the court determined that the evidence presented was clear and convincing, supporting the jury's conclusion that the Journal acted with actual malice in publishing the article regarding Thompson's unverified statements. Evidence of a publisher's failure to investigate does not, on its own, establish actual malice. In the case discussed, the Journal's failure to contact key witness Stephens is critical when considered alongside other evidence. The Journal was found to have motives that included a desire to enhance its reputation in Hamilton political reporting and to support the Dolan campaign. Prior to publishing a November 1, 1983 article, the Journal was aware of Thompson's negative public perception, her history of emotional issues, and that her allegations had been discredited by eyewitnesses. Despite lacking independent verification of her claims and knowing that Stephens could provide critical context regarding Thompson's reliability, the Journal proceeded with publication. The court concluded that this constituted a reckless disregard for the truth, meeting the standard for actual malice as determined by the jury. The court rejected the defendants' argument for the "neutral reportage" doctrine, finding that the reportage was neither accurate nor impartial, thus not qualifying for the privilege. The court emphasized that publishers who endorse or distort claims made by unreliable sources assume responsibility for those charges and cannot seek immunity under the neutral reportage standard. The Journal argued that Thompson's statement, claiming Connaughton used "dirty tricks" to gain her cooperation, was protected under the constitutional privilege for expressions of opinion. However, it noted that opinions based on false facts can be actionable if the defendant is aware of their falsity. Citing legal precedents, it was determined that Thompson's assertion was based on false claims about Connaughton's actions, such as offering her jobs and trips. The Journal, having reasons to doubt these claims, found that Thompson's statements were not constitutionally protected. Consequently, the judgment of the district court was affirmed. In the context of the Hamilton Municipal Court election between Judge James H. Dolan and challenger Daniel E. Connaughton, it was noted that the contentious nature of the campaign left many voters feeling confused and disgusted, leading them to consider not voting for either candidate. Observers indicated that voters were increasingly focused on integrity and honor in their choices. Additionally, the campaign was complicated by pending bribery charges against a former court employee, Billy New, who had not yet been tried or indicted, emphasizing the presumption of innocence. A Butler County grand jury is set to hear the New case, which could implicate Butler County prosecutor John Holcomb and the grand jury members themselves amid the ongoing political climate and approaching elections. Holcomb faces criticism for various actions related to the grand jury process, which may affect his re-election campaign. Potential scenarios include an indictment of New leading to a guilty verdict that could be politically leveraged by Connaughton if he loses the election, or an acquittal that Dolan could claim undermined his candidacy due to frivolous charges. In a dissenting opinion, Circuit Judge Ralph B. Guy, Jr. argues that the plaintiff failed to demonstrate "actual malice" needed for a defamation claim against the Journal-News. He notes critical omissions in the majority's opinion, including the lack of direct quotes from the allegedly defamatory article and the plaintiff's admissions made during an interview prior to publication, which undermine claims of reckless disregard for the truth. Judge Guy asserts that the plaintiff could not meet the clear and convincing evidence standard necessary to prove actual malice and calls for a reversal of the majority's decision. He highlights that the majority’s description of the article lacks the necessary detail to properly assess the issues at hand, emphasizing the need for a thorough examination of the article's exact language. A woman testified before the Butler County Grand Jury regarding the Billy Joe New bribery case, alleging that Dan Connaughton, a candidate for Hamilton Municipal Judge, offered her and her sister jobs and a trip to Florida in exchange for their cooperation. Alice Thompson, 22, expressed concerns that Connaughton employed "dirty tricks" to gain her assistance in his investigation of New. Connaughton acknowledged meeting with Thompson but denied any wrongdoing, suggesting that she misinterpreted their discussions. Thompson aimed to clarify that she did not inform on New and to expose Connaughton's alleged manipulative tactics. Thompson claimed Connaughton failed to protect her anonymity as promised and allowed others to hear recordings of their discussions. While Connaughton and his supporters contended that no direct offers were made, Connaughton admitted there was talk about potential job opportunities for the sisters at a prospective ice cream shop. Thompson accused Connaughton of making promises regarding employment, a post-election trip to Florida, and setting up her parents in a restaurant business at a location he owns. Connaughton maintained that he merely suggested the sisters might consider going South and acknowledged that discussions about a post-election dinner may have occurred. Thompson alleged that Connaughton intended to use the tapes of her statements to pressure Judge Dolan into resigning to facilitate his own appointment as municipal judge. Connaughton refuted claims that he threatened Dolan with the tapes or promised anonymity to the informants, labeling these allegations as false and defamatory. The document highlights several critical allegations regarding the plaintiff's actions and intentions. It is claimed that the plaintiff promised jobs, a trip to Florida, and an expensive dinner to secure cooperation from certain individuals, and that he employed "dirty tricks" to achieve this. During an interview organized by the Journal-News to verify allegations made by Ms. Thompson, the plaintiff's responses were revealing concerning potential actual malice. In addressing whether he intended to confront Judge Dolan with taped accusations, the plaintiff acknowledged discussing the seriousness of the allegations but denied having a firm plan to use the tapes to demand resignations from Dolan and another individual, New. He suggested that while he expressed shock at the information gathered, he did not explicitly state an intention to present the tapes to them or to seek their resignations based on that evidence. Regarding promises of anonymity to informants, the plaintiff indicated that he hoped to maintain their anonymity and discussed this with Thompson but clarified that he did not make a formal promise of anonymity. Overall, the interview transcripts reveal the plaintiff's uncertainty about his intentions and the context of his statements during discussions with the informants. A witness was questioned about the feelings of a woman, presumably Alice, regarding her perceived betrayal concerning anonymity assurances made by the plaintiff. The witness speculated that Alice likely felt misled due to her lack of anonymity. When asked about job offers for Alice or her sister Patsy, or a family trip to Florida, the witness denied making any promises. He mentioned a casual discussion about opening a gourmet ice cream shop, where it was possible Alice or Patsy could work, although this was not a formal offer. Regarding the alleged Florida trip, the witness acknowledged that in a vague manner, the idea of them potentially traveling to Florida or Hilton Head was mentioned, particularly in light of their safety concerns. However, he clarified that he had no property or resources to provide them. As for a promised dinner at the Maisonette, the witness denied making a firm commitment but admitted that a light discussion about it might have occurred. He stated he hadn’t been to the Maisonette for years. The plaintiff acknowledged that topics of jobs, vacations, and dinners had been informally discussed and confirmed his intention to protect Thompson's anonymity while admitting he had considered sharing a recorded interview with Judge Dolan. The pre-publication interview of the plaintiff by the Journal-News affirmed the factual basis of Ms. Thompson's allegations, creating challenges for the Journal-News in determining whether her interpretation of the plaintiff's statements as "promises" was justified. The allegations and the Journal-News' reporting reflected one of multiple interpretations of a document filled with ambiguities, which did not meet the threshold for establishing 'malice' under the precedent set by New York Times v. Pape. The article disclosed the plaintiff's assertion that Ms. Thompson misinterpreted his statements, presenting both viewpoints and allowing readers to form their own opinions. The majority opinion, which downplayed the plaintiff's statements during his interview, suggested that his responses did not support the Journal-News' conclusions regarding admissions of the charges, despite these statements being part of the record that must be considered in relation to First Amendment protections. The jury's rejection of the Journal-News' interpretation of the plaintiff's interview and its acceptance of his denials were not deemed clearly erroneous upon comprehensive review. The dissent expressed concern over the majority's dismissal of undisputed factual statements from the plaintiff, noting that while he initially denied the allegations, he later acknowledged that the topics had been discussed. Extensive quotations from the plaintiff's interview transcript indicate that his statements were not taken out of context and should not be viewed as mere speculation. These statements support the conclusion that Ms. Thompson's allegations were substantially true. The plaintiff acknowledged discussions occurred but claimed Ms. Thompson misinterpreted his comments. The November article accurately reflected this perspective. The dissenting opinion disagrees with the majority's view that the Journal-News acted with a "high degree of awareness of probable falsity," referencing the St. Amant v. Thompson case. A significant portion of the majority opinion addresses the appropriate standard of appellate review concerning "actual malice," particularly in light of the Supreme Court's decision in Bose Corp. v. Consumers Union of United States, which clarified that the "clearly erroneous" standard of Rule 52(a) does not apply to actual malice determinations under New York Times Co. v. Sullivan. The majority contends that applying a de novo review could infringe on a plaintiff's constitutional right to a jury trial under the Seventh Amendment and attempts to reconcile this by limiting de novo review to ultimate conclusions of actual malice rather than credibility determinations. Despite the majority's interpretation, the dissent argues that the Supreme Court's ruling in Bose must be followed, asserting that based on the plaintiff's statements, he did not meet the burden of proving actual malice by clear and convincing evidence. Resolution of the complex issues raised by the Bose opinion is deemed unnecessary for the current case, especially since the Sixth Circuit has not yet addressed these matters. The majority opinion identifies eleven "subsidiary or operative facts" inferred from the jury's finding of "actual malice," which are summarized into five categories: 1) the Journal-News had a motive to publish sensational falsehoods due to its support for the plaintiff's opponent and desire to boost circulation; 2) Ms. Thompson was deemed an unreliable source due to emotional instability; 3) other witnesses discredited Thompson's accusations; 4) the Journal-News intentionally avoided interviewing a key witness; and 5) the Journal-News published Thompson's allegations, aware of the potential harm to the plaintiff. The majority concluded that these subsidiary facts, not found to be clearly erroneous, supported a finding of actual malice, arguing that the plaintiff demonstrated clear and convincing evidence of the Journal-News's reckless disregard for the truth. However, there is skepticism about whether these findings qualify as "clear and convincing evidence" of actual malice, particularly regarding the assertion that the editorial staff intended to undermine the plaintiff's campaign. Actual malice, as defined by legal precedent, requires a showing of publication with knowledge of falsity or reckless disregard for the truth, not merely ill will or bad motives. The majority's interpretation appears to conflate actual malice with animosity and misunderstands the relevance of the Journal-News's circulation motives as evidence of actual malice. Ms. Thompson's allegations, despite her personal issues, were deemed plausible based on prior events known to the Journal-News editors and reporters. The presence of contradictory witness accounts—who were supporters of the plaintiff and did not hear any offers—does not invalidate Thompson's claims, as she alleged that some promises were made privately. The court highlights the Journal-News's failure to interview key witness Patsy Stephens does not prove actual malice, as established by precedent, notably St. Amant and Schultz v. Newsweek. The Journal-News's investigation involved eight or nine reporters, which demonstrates a commitment to journalistic standards, even if her story could not be substantiated. Crucially, the plaintiff's own statements partially corroborate Thompson's allegations about job offers and threats. The Journal-News proceeded with publication only after the plaintiff confirmed that discussions had occurred, and he has not denied making those statements. Even under the majority's most unfavorable interpretations of the subsidiary facts, they do not demonstrate reckless disregard for the truth due to the plaintiff's admissions. Lastly, references to "dirty tricks" used by the plaintiff to obtain Thompson's cooperation are considered constitutionally protected opinions, as established in Gertz v. Robert Welch, Inc., emphasizing that opinions, no matter how damaging, are not actionable as falsehoods. A legal determination is required to assess whether a statement accused of defamation is an opinion or a factual assertion. In the case of Ollman v. Evans, the term "dirty tricks," used by Thompson to describe the actions of Dan Connaughton, a municipal judge candidate, is highlighted. Thompson expressed her belief that Connaughton employed "dirty tricks" to manipulate her cooperation in a personal investigation. Her motivations for speaking to the Journal-News included clarifying that she did not inform on New and disclosing Connaughton's alleged deceptive methods. Thompson raised concerns about Connaughton's breach of her promised anonymity and his failure to protect the confidentiality of conversations regarding her testimony in court. The term "dirty tricks" is characterized as vague and lacking objective verification, indicating it is a subjective opinion rather than a factual claim. The article reflects Thompson’s viewpoint, along with the context of her allegations, allowing readers to form their own opinions regarding Connaughton’s conduct. Ultimately, it is concluded that Thompson's characterization falls under the protection of free speech as an opinion, absolving the Journal-News from liability for its publication. The dissenting opinion emphasizes the relevance of established standards of review regarding factual findings in judicial proceedings. Additionally, the article notes the complexities of the electoral context, including public sentiments about candidates and pending bribery charges against another individual, Billy New, who has not yet been tried or indicted. The case involving Judge Dolan has not yet been evaluated by a grand jury, raising questions about the motives and credibility of the Cincinnati Enquirer, particularly regarding its critical coverage of Dolan during a sensitive time. The newspaper published a front-page story two days post-Grenada invasion, coinciding with congressional scrutiny of the military action and public mourning for U.S. Marines killed in a terrorist attack. Judge Dolan accused Enquirer editor Jim Delaney of threatening a smear campaign if Dolan did not cooperate with the newspaper’s requests. Additionally, unverified claims have emerged suggesting that Connaughton's supporters have financial ties to the Enquirer. The Journal News faces a dilemma over whether to endorse a candidate in the Dolan-Connaughton race, weighing the risks of post-election disclosures against its responsibility to inform voters about the presumption of innocence, given that no charges are pending against Dolan. The excerpt also critiques Blount's unfounded accusations, emphasizing the necessity of verifying claims before publication. The court clarifies that aggressive investigative reporting is essential for exposing potential misconduct by public officials and that the media should have the freedom to endorse candidates as deemed appropriate. The importance of the press as a public watchdog is acknowledged, supported by the New York Times actual malice standard, which protects against editorial pressure in sensational reporting. First Amendment protections do not grant permission to publish known falsehoods or to neglect basic investigative standards. Media entities are not shielded from liability for intentionally or recklessly disseminating falsehoods, even in the context of election campaigns or political issues. The dissent mischaracterizes Connaughton’s responses during a hypothetical interview, failing to acknowledge his denials to direct questions regarding controversial testimony, which illustrates the Supreme Court's emphasis on protecting a plaintiff's right to a jury trial in defamation cases. This case exemplifies the principle that jury findings of fact should be respected unless clearly erroneous, particularly in situations requiring credibility assessments of conflicting testimony. The jury determined that Connaughton and his witnesses were more credible than the defendants' witnesses, rejecting the defense's theory. The majority opinion does not overstep by altering the fact-finding role of the jury but reinforces that their findings were supported by the overall record. The defendant's argument that publishing a letter from the plaintiff constituted balanced reporting does not absolve it from liability for actual malice. Publishing a denial does not negate the recklessness involved in disseminating falsehoods, as First Amendment protections do not excuse the publication of defamatory statements made with actual malice. Printing a denial of accusations in a newspaper does not protect the publication from liability, as it does not rectify the harm caused by previously disseminated false information. A mere denial is insufficient to counteract a demonstrated pattern of reckless disregard for truth. The Supreme Court has emphasized that credibility assessments in libel cases are the jury's responsibility, not the judge's, underscoring that the clear-and-convincing standard of proof applies in summary judgment motions. The Tavoulareas en banc decision seemingly disregarded this standard, selectively reassessing evidence to reach a perceived reasonable interpretation, which undermines the jury's role. The court's approach has paradoxically denied the plaintiff the Seventh Amendment right to a jury trial in libel actions. Furthermore, the majority opinion failed to respect the jury's resolution of conflicting facts and credibility, improperly judging witness credibility without the benefit of visual observation, and neglecting to view evidence in the light most favorable to the plaintiff. The en banc court's analysis did not defer to established Supreme Court principles on defamation and related issues, effectively encroaching on the trial court's jurisdiction. Additionally, it is noted that Judge Dolan was cleared by a grand jury of any wrongdoing related to his court administrator's indictment and conviction. The dissenting opinion concludes that the plaintiff has not demonstrated actual malice by clear and convincing evidence, rendering further analysis of falsity and defamation unnecessary. The jury must discredit both Ms. Thompson's testimony and certain admissions made by the plaintiff to determine the allegations in the article were false. The Supreme Court's decision in Bose Corp. v. Consumers Union has faced significant academic criticism, with various law review articles analyzing its implications on defamation law. The majority opinion references several cases asserting that opinions based on false facts are actionable if the defendant knew or should have known the facts were false. In contrast, it is argued that if the underlying facts are substantially correct, a newspaper cannot be held liable for expressing an opinion regarding those facts, as supported by the case Orr v. Argus-Press Co.