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Beal v. Bangor Publishing
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Decision:	1998 ME 176	
Docket:	Was-97-298
Argued:	June 10, 1998
Decided:	July 17, 1998




	[¶1]  The Bangor Publishing Company and Paul Sylvain (collectively
"Bangor Publishing") appeal from the judgment entered in the Superior
Court (Washington County, Kravchuk, C.J.) following a jury verdict in favor of
Melrose Beal and Betty Beal (collectively "Beal") on Beal's complaint against
Bangor Publishing seeking damages for libel for an article published in the
Bangor Daily News.  Bangor Publishing argues on appeal that the verdict is
based on insufficient evidence.  We affirm the judgment.
	[¶2]  In early February, 1994, a radar gun no longer being used by the
Machias Police Department was loaned to the civilian security division at the
Cutler Naval Communications Center ("Cutler").  When Machias's town
manager was informed that the Machias police department had loaned the
radar gun, he immediately demanded its return because the town's
selectmen had previously voted to offer the radar gun for sale by bid.  The
chief of civilian security at Cutler, Lieutenant Thomas Shea, suspected that
Melrose Beal, a Machias selectman and a civilian security guard at Cutler,
had informed the Machias town manager about the presence of the radar
gun at Cutler.  Shea engaged Beal in a heated telephone conversation
concerning the fact that Beal had gone "off-base" with the fact that the radar
gun was being tested for possible use by Cutler civilian security.  The
exchange between Beal and Shea was so severe that it prompted a complaint
by Beal to Elmer Harmon, president of Beal's union's local.  Harmon
investigated the incident, but ultimately he and Beal decided not to file a
grievance on Beal's behalf.	
	[¶3]  On February 17, 1994, the Bangor Daily News published an
article written by one of its reporters, Paul Sylvain, that concerned the two-
day suspension earned by Machias's chief of police for his role in the
unauthorized loan of the radar gun to Cutler.  This article was followed by
two articles written by Sylvain published on February 22 and 23.  These two
articles contain the subject matter of Beal's libel claim.
	[¶4]  The February 22 article was headlined, "Security guard at Cutler
Navy base reprimanded in radar gun incident."{1}  The article detailed how
Beal had been reprimanded for "breaching national security and violating
conflict of interest rules . . . for going off-base with the information"
concerning the presence of the radar gun at Cutler.  The article also stated
that as a result of the incident Beal had been assigned to a remote part of
the Cutler base where contact with the general public was minimal.  In fact,
Beal was never officially charged with a breach of national security or a
conflict of interest, and his post reassignment had been part of a general
post reassignment occurring months before the radar gun incident.{2} 	
	[¶5]  Beal's case was tried before a jury instructed on the law of
defamation consistent with the court's determination that Beal was a public
official.  The jury returned a verdict in the amount of $125,000 on Melrose
Beal's libel claim and no damages on Betty Beal's loss of consortium claim. 
This appeal followed.{3}
	[¶6]  A public official who brings a defamation suit against critics of his
official conduct must, to succeed in this action, prove that the allegedly
defamatory statements were in fact false and that the statements were made
with "actual malice," that is, that the statements were made with
knowledge of their falsity or with reckless disregard as to whether they
were true or false.  New York Times Co. v. Sullivan, 376 U.S. 254, 283
(1964);  see also True v. Ladner, 513 A.2d 257, 262 (Me. 1986); Michaud v.
Town of Livermore Falls, 381 A.2d 1110, 1113 (Me. 1978).  Actual malice
must be proved by clear and convincing evidence.  See New York Times,
376 U.S. at 285-86; Michaud, 381 A.2d at 1114-15.
	[¶7]  The determination of whether a journalist acts with actual malice
in publishing a defamatory statement involves a subjective inquiry into
whether the author "entertained serious doubts as to the truth of the matter
published."  Tucci v. Guy Gannett Publ'g Co., 464 A.2d 161, 170 (Me. 1983);
see also St. Amant v. Thompson, 390 U.S. 727, 731 (1968).  As the Supreme
Court explained in St. Amant: 
reckless conduct is not measured by whether a reasonably
prudent man would have published, or would have           
investigated before publishing.  There must be sufficient
evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication. 
Publishing with such doubts shows reckless disregard for truth
or falsity and demonstrates actual malice.
St. Amant, 390 U.S. at 731.

	[¶8]  Rare is the instance in which a defendant journalist admits to
publishing a defamatory article with either knowledge of, or reckless
disregard to, the statement's falsity -- this case is no exception.  We thus
rely on circumstantial evidence, namely the conduct of the journalist, to
determine whether actual malice may be inferred.  See, e.g., Tucci, 464 A.2d
at 169 ("Actual malice may be inferred when an investigation is grossly
inadequate in the circumstances.").  In doing so, we keep in mind that an
"erroneous statement is inevitable in free debate, and . . . must be protected
if the freedoms of expression are to have the breathing space they need . . . 
to survive."  New York Times, 376 U.S. at 271-72 (internal quotations and
citations omitted).  Although New York Times and its progeny protect
journalists and publishers from liability for errors of fact derived from
credible sources, reckless disregard for the truth may be found when a
reporter has "'obvious reasons to doubt the veracity of the informant or the
accuracy of his reports.'"  Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 688 (1989) (quoting St. Amant, 390 U.S. at
	[¶9]  In reviewing a libel action brought by a public figure, we are
constitutionally obligated to apply the standard of review articulated in New
York Times v. Sullivan:
The rule is that we examine for ourselves the statements in issue
and the circumstances under which they were made to see . . . 
whether they are of a character which the principles of the    
First Amendment, as adopted by the Due Process Clause of the
Fourteenth Amendment, protect.  We must make an
independent examination of the whole record, so as to assure
ourselves that the judgment does not constitute a forbidden
intrusion on the field of free expression. 
New York Times, 376 U.S. at 285 (internal quotations and citations
omitted).  The heightened standard of appellate review applies only to the
review of the finding of actual malice, and not to the determination of libel. 
See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514
(1984).  We thus independently review the record to "determine whether
the record establishes actual malice with convincing clarity."  Id. 
	[¶10]  On determinations of credibility, however, we defer to the
factfinder because of the factfinder's unique "'opportunity to observe the
demeanor of the witnesses.'"  Harte-Hanks, 491 U.S. at 688 (quoting Bose,
466 U.S. at 499-500).  We review such credibility determinations for clear
error.  See Harte-Hanks, 491 U.S. at 688.   Ultimately our task in reviewing
a verdict for libel in an action brought by a public official is to determine
what evidence the jury reasonably accepted as credible, and whether this
evidence clearly and convincingly establishes actual malice.  See Harte-
Hanks. Inc., 491 U.S. at 698-90; Eastwood v. National Enquirer, Inc., 123
F.3d 1249, 1252 (9th Cir. 1997).
	[¶11]  The "sting" of the February 22 and February 23 articles is found
in the articles' erroneous assertions that Beal had violated Navy security
rules and thus had been reassigned to a remote portion of the Cutler base.{4} 
Bangor Publishing concedes that Beal was never formally charged with any
offense, and that Beal's reassignment occurred months before the radar-gun
incident as part of a general base reassignment affecting all civilian guards at
Cutler.  The logical inference from the article's report of Beal's
reassignment was that the Navy considered Beal to be a security risk
requiring sequestration from the general public.  This defamatory impact of
this assertion exceeds the articles' comparatively vague reports of Beal's
being verbally reprimanded and admonished by the head of security at
Cutler; the articles' treatment of Beal's reassignment erroneously implies
that Beal had been formally charged and found guilty by his superiors at
Cutler of breaching the base's security regulations.  The issue on appeal is
whether these statements were published with knowledge of their falsity or
with reckless disregard as to their truth.
	[¶12]  Beal offered evidence at trial intended to demonstrate that
Sylvain was either aware that his article contained falsities, or that, at a
minimum, Sylvain entertained serious doubts about the accuracy of the
information contained in his article.  Most notably, Beal's union chief
steward Richard Richards testified that he met with Sylvain on February 18
in the local Machias office of the Bangor Daily News, four days before the
article at issue was published.  Richards testified that he told Sylvain at this
meeting that Beal had not filed an official grievance with the union and that
Beal had not been officially reprimanded or disciplined by the Navy officials
at Cutler.{5}  In addition, Richards testified that during this meeting he
explained to Sylvain that Beal's reassignment was not due to the radar gun
incident, but was part of a general reassignment of all civilian security
guards occurring months before the radar gun incident.{6}  
	[¶13]  The jury could have rationally determined Richard's testimony
to be credible.  The jury could have also rationally rejected the rebuttal
evidence Sylvain offered to demonstrate that he relied upon credible
sources who provided him with a different account of Cutler's response to
Beal's involvement in the radar gun incident.  With this credibility
determination in mind, we conclude that clear and convincing evidence
supports the determination that Sylvain's article contains defamatory
statements made with knowledge of their falsity or with reckless disregard
as to whether they were true or false.
	The entry is:
Judgment affirmed.

Attorney for plaintiff: Thomas R. Watson, Esq., (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen, P.A. P O Box 5000 Topsham, ME 04086-5000 Attorneys for defendant: Bernard J. Kubetz, Esq., (orally) Thad B. Zmistowski, Esq. Eaton, Peabody, Bradford & Veague, P.A. P O Box 1210 Bangor, ME 04402-1210
FOOTNOTES******************************** {1} The February 23 article was headlined, "Machias manager defends selectman in radar gun incident." The story concerned the same incident as the February 22 article but the parties in this action agree that it did not contain any new defamatory statements. {2} The Bangor Daily News published a correction in July, 1994, that read: The stories incorrectly reported that [Beal] informed Town Manager Christopher Loughlin about the loan. The articles also incorrectly reported that Beal, who works at the Cutler Navy Base, was charged by the Navy with breach of national security, violation of the conflict of interest rules and was reassigned because of the incident. The town manager stated that it was not Beal who informed him of the radar gun loan. Navy officials said that Beal was reassigned to a different security post, but the reassignment was part of an overall change in the detail and took place prior to the radar gun incident. {3} The jury answered in the affirmative the interrogatory: Has Melrose Beal proven by clear and convincing evidence that Bangor Publishing Company and Paul Sylvain published a false and defamatory statement of fact which they knew to be false or which they published while entertaining serious doubts as to their truth or falsity? {4} The February 22 article read, in part: A Machias selectman employed as a security guard at the Cutler naval base has been reprimanded for breaching national security and violating conflict of interest rules in connection with an incident involving a town-owned radar gun. . . . A Navy source within the security division said that Beal was disciplined on Feb. 4 "for going off-base with the information." Beal, who will be eligible to retire later this year, has since been removed from security duties at the entrance to "mainside," the central administrative, support and billeting section of the base. Beal has been reassigned to a guard shack at the entrance to the more isolated VLF antenna field, where there is little contact with the general public. {5} Richards testified: Q. Was the topic of grievance even discussed with Paul Sylvain -- A. Yes. Q. -- in the February 18 meeting? A. Yes. Q. What did he ask you? A. He asked me if there was a grievance pending, and I told him that as of yet there's nothing been -- you know, there's been no disciplinary action taken by management. Q. So there was nothing to grieve? A. Right. {6} Richards testified : Q. In your conversation with Mr. Sylvain on February 18th, did you discuss the reassignment of the guards? A. Yes. Q. In what context? Why did -- who brought it up? A. I think Mr. Sylvain asked me if Mr. Beal had been reassigned, you know, or assigned to a lower gate. And I told him that the people -- all the guards had been taken off the gates as of September of 1993. Q. September of 1993? A. Right. . . . Q. Did you tell him why the guards had been reassigned? A. Yes. Q. And -- and why -- what did you tell him? Why? A. I told him that Nancy Brown, the commander of the base, had decided that she wanted to have all the security personnel not carry weapons . . . [and] rather than go through the process of a grievance, that they would just reassign the guards down to post two. . . . Q. All right. But if I understand your testimony, you told Sylvain that this happened, but it happened months before? A. Yes. Q. And it happened to all the guards and not just Melrose Beal? A. Yes. . . . Q. What was your reaction when you read [the Feb. 22 article]? A. I was shocked. Q. Why is that? A. Because I was the one that gave him the information to do an article on the commander about the reassignment of the guards to -- to post two.