Russell Henry v. Media General Operations, Inc. ( 2021 )

July 8, 2021
Supreme Court
No. 2018-169-Appeal.
(PC 14-2837)
Russell Henry :
v. :
Media General Operations, Inc., et al. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2018-169-Appeal.
(PC 14-2837)
Russell Henry :
v. :
Media General Operations, Inc., et al. :
Present: Suttell, C.J., Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Robinson, for the Court. We are called upon in this case to assess
the application of the First Amendment to the United States Constitution, and the
pertinent United States Supreme Court precedent interpreting same, to an allegedly
defamatory report which was broadcast on the evening news. In so doing, we keep
in mind the following highly insightful and germane words of Judge Learned Hand,
which were quoted approvingly by the United States Supreme Court in a crucially
important First Amendment opinion:
“[The First Amendment] presupposes that right
conclusions are more likely to be gathered out of a
multitude of tongues, than through any kind of
authoritative selection. To many this is, and always will
be, folly; but we have staked upon it our all.” New York
Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (quoting
United States v. Associated Press, 52 F. Supp. 362, 372
(S.D.N.Y. 1943)).
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The plaintiff in the instant case, Captain Russell Henry,1 appeals from the
April 11, 2018 entry of final judgment in Providence County Superior Court in favor
of defendants, Media General Operations, Inc. (Media General), Chris Lanni,2 James
Taricani, Officer Peter Leclerc,3 Ronald Jacob,4 and Captain Karen E. Guilbeault.
Final judgment was entered in the case after defendants’ motions for summary
judgment were granted. On appeal, Captain Henry contends that the hearing justice
erred in holding that a police officer is what he characterizes as a “per se public
official * * *.” He further posits that the hearing justice erred in determining that
defendants’ publication of a purportedly false allegation was not the product of
actual malice; he adds that, as to that issue, there are genuine issues of material fact
1
According to his brief before this Court, at all times pertinent to the action
before the Superior Court, Russell Henry was a lieutenant in the Cranston Police
Department. However, his brief further indicates that, as of the time of the filing
thereof, he had attained the rank of captain. Therefore, for the purposes of this
opinion, we shall refer to him as Captain Henry.
2
Mr. Lanni is referred to both in the Second Amended Complaint and in the
case caption as Chris Lanni. However, he is referred to in the hearing justice’s April
4, 2018 decision on defendants’ motions for summary judgment and in his brief
before this Court as Christopher Lanni. We shall hereinafter refer to him simply as
Mr. Lanni.
3
In the hearing justice’s written decision, he notes the fact that Officer
Leclerc’s last name appears variously as “Leclerc” and “LeClerc” throughout the
depositions. In addition, he is referred to in his brief as Peter Leclerc and Peter-John
Leclerc. We shall refer to him simply as Officer Leclerc.
4
On appeal, Ronald Jacob failed to file a prebriefing counter-statement
pursuant to Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure.
For that reason, Mr. Jacob was defaulted.
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remaining which make summary judgment inappropriate and that the hearing justice
“impermissibly weighed inferences” against Captain Henry. Captain Henry further
avers that the “trial justice erred in granting summary judgment on [his] claims of
negligent and intentional infliction of distress and violation of R.I. Gen. L. sec.
9-1-28.1 (false light).”
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
I
Facts and Travel
On June 4, 2014, Captain Henry commenced the instant action by filing a
complaint in Superior Court. Eventually, a second amended complaint was filed on
September 8, 2016 (the complaint). The complaint alleged that NBC 10 WJAR
(WJAR), which was owned and operated by Media General, “published reports that
they referred to as the ‘Cranston Parking Ticket Scandal’ which alleged that patrol
officers had issued a substantial increase in parking tickets in the districts
represented by two City of Cranston City Council members that had voted against a
police union [contract] proposal.” The complaint also averred that a news report on
WJAR had stated that the tickets were issued in retribution for the votes of the city
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council members. According to the complaint, Mr. Taricani,5 an investigative
reporter for WJAR, specifically reported during the January 10, 2014 six o’clock
evening news the following, which the complaint alleges was false and defamatory6
as to Captain Henry:
“‘Two sources familiar with the ticket scandal
investigation told the I-Team that Captain Stephen
Antonucci, the Police Union President,[7] used his private
cell phone and told another Lieutenant to use his private
cell phone to order officers to issue overnight parking
tickets to punish two City Councilmen who voted against
the police union contract proposal. The use of the personal
cell phones was to help them cover their tracks. Antonucci
allegedly told his cousin, Lt. Russell Henry, to use his
personal cell phone to give the order to issue the tickets.
Mayor Allan Fung has recently decided to rescind any
tickets that were apparently issued as retribution for the
contract vote.’”
5
The Court notes that, since the commencement of this case, Mr. Taricani has
passed away. See Tom Mooney, Veteran R.I. TV newsman Jim Taricani dies at 69,
The Providence Journal (June 22, 2019), https://www.providencejournal.com/news/
20190622/veteran-ri-tv-newsman-jim-taricani-dies-at-69 (last visited July 7, 2021).
6
As stated in the decision of the hearing justice, defendants’ counsel conceded
at oral argument before the Superior Court that, solely for the purposes of the
motions for summary judgment, the statements at issue were defamatory.
Accordingly, we will similarly assume, without deciding, that the statements at issue
were defamatory.
7
Captain Stephen Antonucci was ultimately fired from the Cranston police
force as a result of his involvement in the parking ticket scandal. Colonel Marco
Palombo, Chief of the Cranston Police Department, also retired in the wake of the
scandal.
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Further, according to the complaint, a “graphic” was also published, which stated
that “‘Lt. Russell Henry * * * ordered officers to issue tickets’ in the context of the
‘Cranston Parking Ticket Scandal.’”8 In addition, according to the complaint, a
report that was consistent with what was reported on the January 10, 2014 evening
news was published on WJAR’s website. The complaint went on to allege that,
contrary to the news report, Captain Henry “had no involvement either directly or
indirectly, in the ‘Cranston Parking Ticket Scandal’” and, further, that he “was
cleared of any involvement * * * by [a] Rhode Island State Police investigation.”
The complaint stated that Mr. Lanni was the News Director of WJAR. The
complaint further stated that Officer Leclerc was a Cranston police officer and that
Mr. Jacob was a retired Cranston police officer. It posited that Officer Leclerc and
Mr. Jacob were the sources on which Media General, Mr. Lanni, and Mr. Taricani
relied in preparing the news report at issue. Additionally, according to the
complaint, Captain Guilbeault was a Cranston police officer “who published false
and defamatory information about the Plaintiff to Defendant, Ronald Jacob, who
then told Defendant, James Taricani * * *.”
The complaint went on to set forth the following counts: one count of libel
(Count One); one count of slander (Count Two); one count of “[v]iolation of R.I.
8
Mr. Taricani testified during his deposition that the “graphic” showed a
“parking ticket that appears to be under a windshield wiper” as well as a cellular
phone.
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Gen. Laws §9-1-28.1(a)(4)” due to the fact that defendants “caused the Plaintiff to
be placed before the public in a false position” (Count Three); and one count of
negligent and intentional infliction of emotional distress (Count Four).
In order to provide the pertinent facts, we now turn to the depositions of the
parties, the answers to interrogatories, and other documents in the record.
A
The Deposition Testimony of James Taricani
Mr. Taricani testified at his deposition that the first time he became aware of
the Cranston parking ticket scandal was in late November or early December of
2013, when he “received either an anonymous letter in the mail or * * * an e-mail
from someone who made it apparent that they were a Cranston police officer.” It
was his testimony that he knew the identity of the informant, but he refused to reveal
it at his deposition, invoking his “rights as a reporter under the Rhode Island Shield
Law.”9 It was his testimony that, in addition to the just-mentioned unnamed source,
Mr. Jacob was his other source for the story at issue. He stated that Mr. Jacob was
“willing to come forward.” However, he added that the other source was not willing
to do so at that time.
9
It would eventually become clear, in the course of the development of this
case, that the unnamed source whom Mr. Taricani referenced at his deposition was
Officer Leclerc.
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It was Mr. Taricani’s further testimony that, prior to the broadcast of the story
at issue, he had composed an initial story about the Cranston parking ticket scandal
(which story did not implicate Captain Henry). He added that, in preparing for that
initial story, he had requested all of the parking ticket records from “Cranston City
Hall * * *.” Mr. Taricani elaborated that the unnamed source had provided him a
“breakdown of the tickets that were issued prior to the night in question and then
after to show the difference;” he added that his source suggested that Mr. Taricani
obtain the records from City Hall. He testified that the summary of tickets which he
received from his source “matched” the actual records that he received from City
Hall.10 It was further Mr. Taricani’s testimony that Mr. Jacob contacted him after
that initial story aired.
Mr. Taricani specifically stated in his deposition that, at the time of the
broadcast of the second story (i.e., the story at issue in this case), he “certainly
believed it was true * * * [b]ased on [his] sources * * *.” Media General’s answers
to Captain Henry’s first set of interrogatories stated that Officer Leclerc told Mr.
Taricani that Captain Antonucci ordered Captain Henry (who at that time was a
10
Media General’s answers to Captain Henry’s first set of interrogatories stated
that Mr. Taricani “recall[ed] that each piece of information provided by Mr. Leclerc
was ultimately determined to be accurate.” Media General added that, for that
reason, Mr. Taricani concluded that Officer Leclerc was a “truthful and reliable
source of information pertaining to matters involving the Cranston Police
Department.”
-7-
lieutenant) to “use his private cell phone to instruct patrol officers to issue” the
tickets in question. Mr. Taricani further testified at his deposition that the unnamed
source—i.e., Officer Leclerc—“claimed to be speaking with people within the
Cranston Police Department that were involved in the internal investigation,” but he
added that said source did not identify who those individuals were. Mr. Taricani
agreed during his testimony that the unnamed source did not actually witness
anything that Captain Henry did. He explained that, “because the source had given
[him] information about other stories that was accurate, in particular Captain
Antonucci’s involvement in [the Cranston parking ticket scandal], [he] thought [the
source] had credibility.”
With respect to Mr. Jacob, Mr. Taricani testified that he was a retired Cranston
police officer who had encountered some “difficulties” in obtaining a disability
pension and that he had had “his issues with the Cranston Police Department * * *
for a number of years.” Mr. Taricani agreed that he could characterize Mr. Jacob as
a “disgruntled former employee[.]” It was further Mr. Taricani’s testimony that, in
order to determine whether he was receiving true and accurate information from Mr.
Jacob, he asked the unnamed source what he thought of Mr. Jacob (and he added
that he might also have asked another police officer in the Cranston Police
Department the same question); he stated that the feedback he received was that Mr.
Jacob was a “good cop.” Mr. Taricani said that he believed Mr. Jacob was credible
-8-
because Mr. Jacob “kept saying that he * * * was talking to people almost on a daily
basis inside the Cranston Police Department that had direct knowledge of the internal
investigation.” Mr. Taricani further testified that he did not ask Mr. Jacob who his
sources were because, in his mind, Captain Henry “was not a big part of the story”
and had not done “anything wrong other than follow an order of Steve Antonucci.”
When Mr. Taricani was asked if, when Mr. Jacob did not reveal his sources, he made
a further inquiry of Mr. Jacob about the matter, Mr. Taricani testified that he did not
do so because he was “relying on [his] first source who had a track record of being
credible * * *.”
Mr. Taricani further testified that he learned from one or both of his sources
that Captain Henry and Captain Antonucci had a “familial connection;” he added
that he called someone else to verify that information and was told that the two men
were cousins “or something like that.” It was also Mr. Taricani’s testimony that, in
his opinion, Captain Henry was not “a big player in this story and I didn’t think I
was really defaming him or saying anything that would cause him grief or anything.”
He also testified that he tried to confirm the story which mentioned Captain
Henry by attempting to call “somebody at state police,” and he said that he also had
a conversation with City Councilman Steve Stycos.
When asked if he thought there was “anything more [he] could have done to
determine” whether or not Captain Henry was actually involved, he stated: “Other
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than talking to [Captain] Henry himself, I don’t know what else I could have done.”
He testified that, prior to airing the story at issue, he had tried to contact Captain
Henry but did not receive a response. Specifically, he testified that he called the
Cranston Police Department and asked to be connected to Captain Henry’s phone;
however, he added that the individual with whom he spoke at the police department
was unsuccessful in putting him through to Captain Henry’s phone and that,
therefore, he left a message on the phone of another police officer who he “assumed,
wrongly, * * * would contact [Captain] Henry * * *.” He further testified that he
tried to find Captain Henry’s home phone number but was unable to do so, although
he stated that he did not remember “how extensive that inquiry was.” When asked
whether he would have done everything the same way if given the opportunity to do
it over again, Mr. Taricani stated that he “perhaps would have made more of an effort
to get ahold of [Captain] Henry that day.”
Mr. Taricani went on to testify that, sometime after the airing of the story at
issue, WJAR was contacted by Captain Henry’s attorney, who requested that a
correction be made on air. Mr. Taricani said that he then “double checked” with
both of his sources and “pressed them,” and they both ultimately said: “‘Well, now
we can’t be 100 percent sure * * *.’” He elaborated that, prior to Captain Henry’s
attorney contacting the station, on the night the story at issue was broadcast, the
“investigative reporter unit photographer” called Mr. Taricani at home after the story
- 10 -
had aired and informed him that Captain Henry was “upset” about the story and that
Captain Henry said that he had “absolutely nothing to do with this ticket scandal.”
Mr. Taricani stated that, after that conversation, he called WJAR immediately and
instructed the personnel there to take the story off the eleven o’clock news and the
website, which, according to his testimony, they did. He stated that he did so because
he “tried to be fair to [Captain] Henry and [he] didn’t want that rebroadcast in any
way, shape or form.” He testified that the story was thereafter retracted.11
Of additional significance is the fact that, according to Captain Henry’s first
supplemental answer to Mr. Lanni’s first set of interrogatories, Colonel Marco
Palombo (who was the Chief of the Cranston Police Department during the time at
issue) told Mr. Taricani on two occasions prior to the broadcast implicating Captain
Henry that Captain Henry had no involvement in the parking ticket scandal.12
11
It is also worth noting that, in Media General’s answers to Captain Henry’s
first set of interrogatories, it was stated that Mr. Taricani spoke with Mr. Lanni
within one or more days of the broadcast at issue and informed him of his two
confidential sources; he told Mr. Lanni that his primary source was “very reliable,”
having previously provided him with information, of which Mr. Taricani was able
to establish the accuracy. We further note that Mr. Lanni was deposed in this case,
but the record before us contains only a very small portion of that deposition
testimony.
12
The hearing justice’s decision on defendants’ motions for summary judgment
states that Media General, Mr. Taricani, and Mr. Lanni had conceded, solely for the
purposes of their summary judgment motions, that Mr. Taricani spoke with Chief
Palombo but that they otherwise deny such conversations occurred.
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B
The Deposition Testimony of Officer Leclerc
Officer Leclerc testified that he was a patrol officer with the Cranston Police
Department. He further testified that he was involved in the case because, in
November or December of 2013, he was one of Mr. Taricani’s sources for the story
at issue. Officer Leclerc explained as follows just how he garnered the information
that he provided to Mr. Taricani and why he did so:
“I was in the locker room one morning getting dressed
prior to work, and I heard a couple of guys on the other
side of the locker room talking about something about
tickets. Didn’t pay much attention to it. I heard one of the
guys mention something about getting a phone call from
Russ. Didn’t pay much attention to it. I went upstairs,
started my day.
“About a month later or so, I heard it again outside
of my office. Where my office is at the station, there’s a
lot of traffic that goes by. I heard it again. Once I heard it
again, and feeling that I knew that [it was] Steve
Antonucci who was involved in the [parking ticket
scandal] and [Captain Antonucci and Captain Henry were]
related, and the fact that they were on the executive board
together, and the fact that they were -- stood to lose a lot
of money [due to the police contract having failed to win
approval from the City Council], I thought that it was true.
And I believed for the better of the department it could not
go internally due to the hostility and the potential
corruption that was going on with the administration of
that police department. There was only one way to go and
to act was through the media.”
Officer Leclerc testified that, when they met prior to the story at issue being
aired, he told Mr. Taricani that he was a member of the Cranston Police Department.
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He added that he did not give Mr. Taricani any documentation but simply told him
where to look. He testified that, in an email, he specifically mentioned to Mr.
Taricani that he had heard about Captain Henry’s involvement in the parking ticket
scandal. He further stated that he told Mr. Taricani that he had heard the information
on “two separate occasions from separate groups in separate locations * * *.”
Officer Leclerc testified that he did not know the identity of the individuals
he heard discussing the parking ticket scandal in the locker room, but that they had
to have been employees of the Cranston Police Department because they were in a
restricted area; he added that he told Mr. Taricani that he did not know the identity
of the individuals. He then testified that, with respect to the discussion he later
overheard from inside his office, he also did not know the identity of the officers
involved. It was his testimony that during neither conversation did he overhear
statements as to what Captain Henry’s specific involvement was.
Officer Leclerc stated at least twice during his deposition that he did not tell
Mr. Taricani that Captain Henry ordered officers to issue tickets specifically by
using his personal cell phone; but he then clarified, stating that he had in fact told
Mr. Taricani that Captain Henry had “used a cell phone to call officers” despite
Officer Leclerc’s testimony that he had not learned the information about the cell
phone from either of the overheard conversations which formed the basis of what he
told Mr. Taricani.
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When asked if he told Mr. Taricani that he was a source familiar with the
parking ticket scandal investigation, Officer Leclerc testified that he “never used
those words.” Additionally, when asked if he did anything to independently verify
the conversations he had overheard he stated: “Nothing.” However, Officer Leclerc
testified that, at the time, with the information that he had, he believed that the
information he had relayed to Mr. Taricani was true.
C
The Deposition Testimony of Ronald Jacob
Mr. Jacob testified that he had retired from the Cranston Police Department
and that, at the time of his deposition, he had been a resident of South Carolina for
ten years. He testified that he had been receiving a pension since 2005 based on his
years of service. He also mentioned that he would be going to court “soon” because
he believed that he was entitled to, but was not receiving, a disability pension.
In an email sent on December 23, 2013, Mr. Jacob provided the following
information to Mr. Taricani: “‘My sources have stated that [Captain] Henry gave the
order to the officers to ticket the vehicles. The problem I see with this is [Captain]
Henry is an extended family member of Captain and Union President Stephen
Antonucci.’” He sent a further email to Mr. Taricani on December 28, 2013, in
which he stated: “Another rumor is that Stephen Antonucci and [Captain] Henry
were riding around the two districts that were mass ticketed and used their cell
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phones to contact the officer, who had those posts to ticket certain vehicles in those
districts. As I stated before, [Captain] Henry is an extended family member of the
Antonucci family. As I stated these are rumors, which need to be looked into.”
It was Mr. Jacob’s testimony at his deposition that he never “professed to have
any firsthand knowledge of anything that was going on” in the department in 2013,
nor did he tell Mr. Taricani that he did. Rather, it was his testimony that he spoke
to Captain Guilbeault as well as at least three other individuals and that he could not
say that Captain Guilbeault was the source of the information about Captain Henry;
he added that he could say that Captain Guilbeault was the source of his information
only “to about 33 percent” because he was “talking to other people” as well. It was
Mr. Jacob’s testimony that Captain Guilbeault was the only active-duty Cranston
police officer to whom he spoke.
Mr. Jacob testified that he was not “trying to hurt anybody.” He added that
Mr. Taricani should have “look[ed] into” the information he had provided and that
Mr. Taricani “dropped the ball” and “put it out too early.” Mr. Jacob testified that
he did not consider himself a source for Mr. Taricani, but rather was just “someone
who was passing on rumors.” He did acknowledge, however, that he did not “really
care for” Captain Henry.
In addition, it is worth noting that, on February 5, 2014 (i.e., after the
broadcast at issue), Mr. Taricani emailed Mr. Jacob telling him that the other source
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could no longer be “‘sure’” if Captain Henry was involved. That email continued as
follows: “When I first talked with you, you told me ‘a Lt.’ helped make the phone
calls and the Lt. was related to Antonucci. My other source gave me Henry’s name.”
In a November 8, 2015 email to one of the attorneys who represented the media
defendants—i.e., Media General, Mr. Lanni, and Mr. Taricani—Mr. Jacob stated
that it was Mr. Taricani who gave him Captain Henry’s name rather than the other
way around.13
D
The Deposition Testimony of Captain Guilbeault
Captain Guilbeault specifically testified that she was not Mr. Jacob’s source
about events relative to the Cranston Police Department that occurred between
November of 2013 and January of 2014. She further testified that she never spoke
to Officer Leclerc about the parking ticket scandal except when just “passing in the
hallway.”
Captain Guilbeault testified specifically that she spoke to Mr. Jacob on the
phone on December 14, 2013 but could not remember why she made that call. It
was her testimony that she believed the call was “work-related” with respect to
13
In Media General’s answers to Captain Henry’s first set of interrogatories, it
was stated that Mr. Taricani recalled that Mr. Jacob told him that he had heard of
Captain Henry’s involvement in the parking ticket scandal and that Mr. Jacob had
then confirmed as much with his sources in the Cranston Police Department.
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requests he had made of her in her role as the “planning and research captain;” she
testified that she did not talk to Mr. Jacob about the parking ticket scandal. Captain
Guilbeault also testified that the reason she exchanged numerous calls with Mr.
Jacob was because there was “an issue with his records.”
It was further her testimony that she did mention Captain Henry to Mr. Jacob
in an email dated April 9, 2014, after the airing of the story at issue, in which she
said that “they are working on getting stuff against Henry now;” she added that her
basis for that statement was rumors going around the police station. It is clear from
Captain Guilbeault’s testimony that she objected to some actions of Chief Palombo
as well as the work environment in the Cranston Police Department during the time
period at issue.14
E
The Motions for Summary Judgment
On September 15, 2017, Media General, Mr. Lanni, and Mr. Taricani filed a
motion for summary judgment alleging that Captain Henry was a public official and,
as such, would be required to prove by clear and convincing evidence that any
allegedly defamatory statement made about him was made with actual malice; they
14
According to the decision of the hearing justice on defendants’ motions for
summary judgment, at the time of her deposition, Captain Guilbeault had a pending
lawsuit against Captain Henry and the City; but, pursuant to a court order, any
information with respect to that lawsuit was excluded from the scope of the
deposition.
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contended that Captain Henry could not meet that burden. Subsequently, Officer
Leclerc and Captain Guilbeault also moved for summary judgment. Mr. Jacob filed
a motion to dismiss that was converted by the hearing justice to a motion for
summary judgment without objection. A hearing on the several motions was held
on January 12, 2018.
Thereafter, on April 4, 2018, the hearing justice issued a written decision. The
hearing justice began his analysis by addressing whether or not Captain Henry was
a public official. He stated that that was a question of law, and he expressly observed
that “[i]n Rhode Island, police officers have been held to be public officials for the
purpose of defamation actions.” He added that the facts of this case “strongly
support finding that Plaintiff was a public official.”
Accordingly, the hearing justice proceeded to address whether or not Captain
Henry could prove, by clear and convincing evidence, that defendants acted with
actual malice in disseminating the allegedly defamatory information at issue. He
began this portion of his decision by holding as follows with respect to Media
General, Mr. Lanni, and Mr. Taricani:
“Taking all the evidence in the light most favorable
to the Plaintiff can only establish that the story was wrong
and that Mr. Taricani might have done further
investigation. That in and of itself is not actual malice.
Plaintiff has failed to show that there is sufficient clear and
convincing evidence upon which a jury could find that
[Media General, Mr. Lanni, and Mr. Taricani] had actual
malice or displayed a reckless disregard for the truth.”
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The hearing justice went on to address the situation of Captain Guilbeault, holding
that “[w]hile there [was] evidence of a grudge between Captain Guilbeault and
Plaintiff * * * there [was] no evidence other than pure speculation that suggest[ed]
Captain Guilbeault knew the information she allegedly provided Mr. Jacob was
false;” he added that plaintiff had failed to show that there was clear and convincing
evidence on the basis of which a jury could find actual malice with respect to Captain
Guilbeault. With respect to Officer Leclerc, the hearing justice held that Captain
Henry had likewise failed to meet his “substantial burden to prove actual malice.”
(Internal quotation marks omitted.) Lastly, as to Mr. Jacob, the hearing justice held
that “[p]laintiff has offered no evidence that suggests Mr. Jacob entertained serious
doubts about the accuracy of the information he provided to Mr. Taricani,” since his
alleged source—Captain Guilbeault—appeared reliable and credible.
Finally, the hearing justice held that the other counts in Captain Henry’s
complaint also failed because Captain Henry’s “defamation claim cannot be
rebaptized as another tort to evade the protections of the First Amendment.”
Final judgment entered in defendants’ favor on April 11, 2018. A timely
notice of appeal was filed.
- 19 -
II
Standard of Review
This Court reviews a hearing justice’s grant of a motion for summary
judgment in a de novo manner. Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424
(R.I. 2009); see also Deutsche Bank National Trust Company for Registered Holders
of Ameriquest Mortgage Securities, Inc. v. McDonough, 160 A.3d 306, 311 (R.I.
2017). “We review the evidence in a light most favorable to the nonmoving party
and will affirm the judgment if there exists no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Lynch, 965 A.2d at 424.
“The party opposing summary judgment bears the burden of proving, by competent
evidence, the existence of facts in dispute.” Cullen v. Lincoln Town Council, 960
A.2d 246, 248 (R.I. 2008) (internal quotation marks omitted). “[T]he opposing
part[y] will not be allowed to rely upon mere allegations or denials in [the]
pleadings[ ] [but] [r]ather, by affidavits or otherwise [the opposing party has] an
affirmative duty to set forth specific facts showing that there is a genuine issue of
material fact.” The Providence Journal Co. v. Convention Center Authority, 774
A.2d 40, 46 (R.I. 2001) (internal quotation marks omitted).
What is more, “summary judgment should enter ‘against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case * * *.’” Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I.
- 20 -
2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also
Deutsche Bank National Trust Company, 160 A.3d at 311. “Demonstrating mere
factual disputes will not defeat summary judgment; the requirement is that there be
no genuine issue of material fact.” Deutsche Bank National Trust Company, 160
A.3d at 311 (emphasis in original) (internal quotation marks omitted).15
III
Analysis
A
Public Official
“The constitutional guarantees require * * * a federal rule that prohibits a
public official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with ‘actual malice’—
15
It should be noted that, while the standards applicable to motions filed
pursuant to Rule 56 of the Superior Court Rules of Civil Procedure must always be
adhered to, summary judgment is a particularly appropriate procedural mechanism
in defamation cases. See, e.g., Farah v. Esquire Magazine, 736 F.3d 528, 534 (D.C.
Cir. 2013) (“[T]his court has observed that summary proceedings are essential in the
First Amendment area because if a suit entails long and expensive litigation, then
the protective purpose of the First Amendment is thwarted even if the defendant
ultimately prevails.”) (internal quotation marks omitted); Washington Post Co. v.
Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966) (emphasizing how essential summary
judgment procedures are in the First Amendment arena); ELM Medical Laboratory,
Inc. v. RKO General, Inc., 532 N.E.2d 675, 680 (Mass. 1989) (“As this court has
noted, summary judgment may be desirable in defamation cases to protect First
Amendment rights, as the costs of litigation may induce an unnecessary and
undesirable self-censorship.”) (internal quotation marks omitted).
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that is, with knowledge that it was false or with reckless disregard of whether it was
false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
In order to determine whether the actual malice standard announced in New
York Times Co. is applicable in this case, we must first address the initial question
of whether or not Captain Henry was, at the time of the subject broadcast, a public
official.
We begin by noting that “[t]he determination of whether a plaintiff is a public
official is a question of law and is generally a function of the court.” Hall v. Rogers,
490 A.2d 502, 505 n.3 (R.I. 1985) (citing Rosenblatt v. Baer, 383 U.S. 75, 88
(1966)); see Pendleton v. City of Haverhill, 156 F.3d 57, 67 (1st Cir. 1998) (Selya,
J.) (“The Rosenblatt Court declared that it is for the trial judge in the first instance
to determine whether the proofs show [the plaintiff] to be a ‘public
official,’ * * * and it explained that ceding this responsibility to the bench reduced
the chance that jurors might use the cloak of a general verdict to punish unpopular
ideas or speakers * * *. Extrapolating from this pronouncement, a number of federal
courts (including this one) have treated First Amendment status determinations as
grist for the court’s—not the jury’s—mill.”) (internal quotation marks omitted).
The United States Supreme Court, in Rosenblatt v. Baer, 383 U.S. 75 (1966),
held that “the ‘public official’ designation applies at the very least to those among
the hierarchy of government employees who have, or appear to the public to have,
- 22 -
substantial responsibility for or control over the conduct of governmental affairs.”
Rosenblatt, 383 U.S. at 85. “Where a position in government has such apparent
importance that the public has an independent interest in the qualifications and
performance of the person who holds it, beyond the general public interest in the
qualifications and performance of all government employees,” the actual malice
standard applies. Id. at 86.16
It is particularly pertinent to note that this Court has previously considered the
application of the standard articulated by the Supreme Court in Rosenblatt to the
questions of whether or not a police sergeant and a “special police officer” were
public officials. Hall, 490 A.2d at 503. In Hall, we specifically held that the police
officers were public officials because they qualified as such under the test in
Rosenblatt. Id. at 504. We further relied upon the then-recent opinion of the United
States Court of Appeals for the Tenth Circuit in Gray v. Udevitz, 656 F.2d 588 (10th
Cir. 1981), in which that court likewise determined that a police officer was a public
official. Hall, 490 A.2d at 504 (citing Gray, 656 F.2d at 591). In Hall, we noted
that, in Gray, the court had reasoned that a police officer qualified as a public official
under the Rosenblatt standard because of the officer’s authority and ability to use
16
See also Mangual v. Rotger-Sabat, 317 F.3d 45, 65 (1st Cir. 2003) (“The
[Supreme Court] originally defined ‘public official’ narrowly * * * [but] [i]n
practice, the term is now used more broadly and includes many government
employees, including police officers.”).
- 23 -
force and the fact that “misuse of that authority can result in significant deprivation
of constitutional rights and personal freedoms, as well as bodily injury and financial
loss.” Id. (citing Gray, 656 F.2d at 591). We further stated in Hall that both the
spirit of the doctrine articulated in New York Times Co. and decisions in later cases
supported “the classification of police officers as public officials.” Id. at 505.
Thus, it is eminently clear to this Court that, under our precedent in Hall,
Captain Henry, as a then-lieutenant in the Cranston Police Department, was a public
official.
However, Captain Henry invites this Court to revisit Hall. More specifically,
he contends that “Hall’s blanket rule for all police officers misreads the United States
Supreme Court’s pertinent case law.” He further avers that this Court in Hall
announced “a per se rule that all police officers are public officials” and that, in fact,
under New York Times Co. and Rosenblatt, it would be more appropriate to apply a
case-by-case test. (Emphasis in original.)
After careful consideration of the various applicable legal precedents, we find
ourselves entirely unable to agree with any portion of Captain Henry’s argument in
this regard. In Hall, we specifically applied the test provided for in Rosenblatt, and
we do not read that opinion (or the underlying New York Times Co. opinion itself)
to, in any way, require a case-by-case analysis with respect to the question of
whether or not a police officer is a public official. See Hall, 490 A.2d at 504. Nor,
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we might add, is Captain Henry able to point to any persuasive support for his
suggestion, apart from dicta contained in one particular decision of the United States
Court of Appeals for the Sixth Circuit.17 What is more, this Court’s decision in Hall
is in line with the vast weight of authority from around the country.18
17
Captain Henry relies on the opinion of the United States Court of Appeals for
the Sixth Circuit in Young v. Gannett Satellite Information Network, Inc., 734 F.3d
544 (6th Cir. 2013). In that opinion, the court expressly stated that it did not need to
decide the issue of whether or not Sergeant James Young was a public official
because he had conceded that he fell into that category. Young, 734 F.3d at 549. In
dicta, the court then noted that some other cases which had found a police officer to
be a public official involved officers of higher rank than Sergeant Young. Id. at 549-
50. It suggested, without deciding the issue, that, were it not for the concession by
the plaintiff, perhaps the case before the court should not have been decided under
the actual malice standard. Id. Were the Sixth Circuit to have found it necessary to
actually decide the issue and had it then determined that Sergeant Young was not a
public official, its decision would certainly have been very much an outlier. See
footnote 18, infra.
18
See, e.g., St. Amant v. Thompson, 390 U.S. 727, 730 n.2 (1968) (deputy
sheriff); McGunigle v. City of Quincy, 835 F.3d 192, 206 (lst Cir. 2016) (police
officer); McKinley v. Baden, 777 F.2d 1017, 1021 (5th Cir. 1985) (police officer);
Meiners v. Moriarity, 563 F.2d 343, 352 (7th Cir. 1977) (government agents);
Mercer v. City of Cedar Rapids, 308 F.3d 840, 848 (8th Cir. 2002) (police officer);
Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (police officer); Seymour v. A.S.
Abell Co., 557 F. Supp. 951, 957 (D. Md. 1983) (state police sergeant); Hildebrant
v. Meredith Corp., 63 F. Supp. 3d 732, 745 (E.D. Mich. 2014) (police officers);
Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761, 765 (D.N.J. 1981) (Port
Authority police officer); Roberts v. Dover, 525 F. Supp. 987, 990 (M.D. Tenn.
1981) (state highway patrolman); Jackson v. Filliben, 281 A.2d 604, 605 (Del. 1971)
(police sergeant); Smith v. Russell, 456 So.2d 462, 463-64 (Fla. 1984) (police
officer); Reed v. Northwestern Publishing Co., 530 N.E.2d 474, 480 (Ill. 1988)
(police officer); Rawlins v. Hutchinson Publishing Co., 543 P.2d 988, 992 (Kan.
1975) (police officer); Smith v. Danielczyk, 928 A.2d 795, 805 (Md. 2007) (police
officers); Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 288-89 (Mass. 2000) (state
police trooper); Britton v. Koep, 470 N.W.2d 518, 524 (Minn. 1991) (county
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Not only are we in unequivocal agreement with the reasoning in Hall, but we
are also mindful of the venerable principle of stare decisis. Accordingly, we
emphatically decline to depart from our precedent in Hall. See Johnston Ambulatory
Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 807 (R.I. 2000) (“The doctrine of
stare decisis dictates that courts should adopt the reasoning of earlier judicial
decisions if the same points arise again in litigation.”); see also Air Distribution
Corp. v. Airpro Mechanical Co., Inc., 973 A.2d 537, 541 n.6 (R.I. 2009) (“Although
it is not a jurisprudential principle that admits of absolutely no exceptions, the
principle of stare decisis is nonetheless one of the most basic norms in our legal
system.”). Captain Henry has failed to provide us with any convincing argument for
abandoning the principle established in Hall, and we certainly do not perceive any
reason for doing so.19
Accordingly, having taken into account the voluminous precedent from the
United States Supreme Court, from this Court, and from other courts, it is our
probation officer); National Association for the Advancement of Colored People v.
Moody, 350 So.2d 1365, 1369 (Miss. 1977) (highway patrol officer); McClain v.
Arnold, 270 S.E.2d 124, 125 (S.C. 1980) (police officer); Colombo v. Times-Argus
Association, Inc., 380 A.2d 80, 83 (Vt. 1977) (police officer/detective).
19
It should go without saying that recent distressing events in this country
relating to the conduct of police officers serve to remind us of the importance of
media scrutiny of the actions of police officers. See Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469, 491-92 (1975).
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unequivocal holding that Captain Henry was a public official at the time of the
broadcast at issue.
B
Actual Malice20
Having established that Captain Henry was indeed a public official at the time
of the broadcast in question, it now becomes our role to determine if the broadcast
was made with actual malice.21
1. The Applicable Precedent
In determining whether or not the broadcast was made with actual malice, we
“must make an independent examination of the whole record * * *.” New York
Times Co., 376 U.S. at 285 (internal quotation marks omitted); see also Horne v.
WTVR, LLC, 893 F.3d 201, 210-11 (4th Cir. 2018) (“This Court * * * reviews
whether there was sufficient evidence of ‘actual malice’ de novo.”).
20
A good explanation of what “actual malice” is and what it is not can be found
in Reliance Insurance Co. v. Barron’s, 442 F. Supp. 1341 (S.D.N.Y. 1977).
21
Bearing in mind the parameters established in New York Times Co. v. Sullivan,
376 U.S. 254 (1964), we have determined that this case involves: (1) a defamatory
falsehood (a point conceded by defendants solely for the purposes of the motions for
summary judgment, see footnote 6, supra); and (2) a situation in which the falsehood
related to the official duties of Captain Henry, who was a public official. See New
York Times Co., 376 U.S. at 279-80. All that is left for us to consider is whether or
not defendants acted with actual malice. See id.- 27 -
Actual malice must be proved by clear and convincing evidence, and “whether
the evidence in the record in a defamation case is sufficient to support a finding of
actual malice is a question of law.” Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 659, 685 (1989); see Bose Corp. v. Consumers Union
of United States, Inc., 466 U.S. 485, 511 n.30 (1984); see also Cullen v. Auclair, 809
A.2d 1107, 1111 (R.I. 2002).
The United States Supreme Court has held that “[w]hen determining if a
genuine factual issue as to actual malice exists in a libel suit brought by a public
figure, a trial judge must bear in mind the actual quantum and quality of proof
necessary to support liability under New York Times”—i.e., “the judge must view
the evidence presented through the prism of the substantive evidentiary burden.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).22 As such, “there is no
genuine issue if the evidence presented * * * is of insufficient caliber or quantity to
allow a rational finder of fact to find actual malice by clear and convincing
evidence.” Id.; see also Harte-Hanks Communications, Inc., 491 U.S. at 686(“[Judges] have a duty to independently decide whether the evidence in the record
22
The language from Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), that
is quoted in the text speaks of a “public figure” plaintiff. However, in our view, the
principles enunciated in Anderson apply with equal force to “public official”
plaintiffs. See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 163 (1967)
(Warren, C.J., concurring) (“To me, differentiation between ‘public figures’ and
‘public officials’ * * * [has] no basis in law, logic, or First Amendment policy.”).
- 28 -
is sufficient to cross the constitutional threshold that bars the entry of any judgment
that is not supported by clear and convincing proof of actual malice.”) (internal
quotation marks omitted). In assessing the motions for summary judgment under
the clear and convincing evidence standard, we must also keep in mind that “[t]he
evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson, 477 U.S. at 255. However, it is also true that “[t]he
movant has the burden of showing that there is no genuine issue of fact, but the
plaintiff is not thereby relieved of his own burden of producing in turn evidence that
would support a jury verdict.” Id. at 256. “The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
The United States Supreme Court has stated, with respect to the values which
form the basis of the actual malice standard articulated in New York Times Co., that
“[t]he maintenance of the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes may be
obtained by lawful means, an opportunity essential to the security of the Republic,
is a fundamental principle of our constitutional system.” New York Times Co., 376
U.S. at 269 (internal quotation marks omitted); see also Bridges v. California, 314
U.S. 252, 265 (1941) (“[T]he only conclusion supported by history is that the
unqualified prohibitions laid down by the framers were intended to give to liberty of
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the press * * * the broadest scope that could be countenanced in an orderly
society.”). Indeed, the guarantees embodied in the First Amendment, among them
freedom of speech and freedom of the press, reflect a “profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials.” New
York Times Co., 376 U.S. at 270; see also Edwards v. National Audubon Society,
Inc., 556 F.2d 113, 115 (2d Cir. 1977) (“In a society which takes seriously the
principle that government rests upon the consent of the governed, freedom of the
press must be the most cherished tenet. * * * To preserve the marketplace of ideas
so essential to our system of democracy, we must be willing to assume the risk of
argument and lawful disagreement.”) (internal quotation marks omitted).
A statement is made with actual malice when it is made with “knowledge that
it was false or with reckless disregard of whether it was false or not.” New York
Times Co., 376 U.S. at 279-80; see also Alves v. Hometown Newspapers, Inc., 857
A.2d 743, 751 (R.I. 2004). The Supreme Court, after noting that reckless disregard
“cannot be fully encompassed in one infallible definition,” proceeded in St. Amant
v. Thompson, 390 U.S. 727 (1968), to elucidate that all-important definition. St.
Amant, 390 U.S. at 730-31. In that case, the Supreme Court stated that its previous
opinions had made it “clear that reckless conduct is not measured by whether a
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reasonably prudent man would have published, or would have investigated before
publishing[;] [rather,] [t]here must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts as to the truth of his publication.”
Id. at 731; see also Harte-Hanks Communications, Inc., 491 U.S. at 667.
Additionally, it is “worth emphasizing that the actual malice standard is not satisfied
merely through a showing of ill will or ‘malice’ in the ordinary sense of the term,”
but instead requires that a plaintiff show that the defendant “made the false
publication with a high degree of awareness of * * * probable falsity * * *.” Harte-
Hanks Communications, Inc., 491 U.S. at 666, 667; see also Major v. Drapeau, 507
A.2d 938, 941 (R.I. 1986). The standard itself is subjective. Harte-Hanks
Communications, Inc., 491 U.S. at 688; see Jankovic v. International Crisis Group,
822 F.3d 576, 589 (D.C. Cir. 2016); McFarlane v. Sheridan Square Press, Inc., 91
F.3d 1501, 1508 (D.C. Cir. 1996).
A defendant in a defamation action cannot “automatically insure a favorable
verdict by testifying that he published with a belief that the statements were
true. * * * Nor will [a defendant] be likely to prevail when the publisher’s
allegations are so inherently improbable that only a reckless man would have put
them in circulation[ ] [or] * * * where there are obvious reasons to doubt the veracity
of the informant or the accuracy of his reports.” St. Amant, 390 U.S. at 732; see
Harte-Hanks Communications, Inc., 491 U.S. at 688. At the same time, however,
- 31 -
American courts have manifested an awareness of the constitutional values at stake
when a defamation case is somewhat close. See Liberty Lobby, Inc. v. Pearson, 390
F.2d 489, 491 (D.C. Cir. 1967) (“While the right of expression and publication is
not absolute, the balance is always weighted in favor of free expression * * * and
tolerance for error is afforded; some utterances are protected not because of their
merit or truth but because a free, open society elects to take calculated risks to keep
expression uninhibited.”).
2. Captain Henry’s Contentions on Appeal
Captain Henry contends on appeal that there is “ample reason to conclude that
the Defendants published false facts about the Plaintiff with ‘actual malice * * *.’”
He points to the fact that Mr. Taricani twice spoke with Chief Palombo, who denied
Captain Henry’s involvement in the parking ticket scandal, and he further points to
the fact that Mr. Taricani failed to mention that denial in his report. He also alleges
that Mr. Taricani’s “weak attempts to reach the Plaintiff prior to publication * * *
support[ ] the inference that he would rather not have heard Plaintiff’s response to
his questions.” He also asserts that Mr. Taricani testified at his deposition that he
should have done more to contact Captain Henry before the report aired.
Captain Henry further points out that Mr. Taricani knew that neither of his
sources had firsthand knowledge of Captain Henry’s involvement in the parking
ticket scandal but instead were reporting rumors. Captain Henry also avers that Mr.
- 32 -
Taricani’s on-air claim that his sources were close to the parking ticket investigation
“had no apparent basis in fact” because Officer Leclerc testified that he did not tell
Mr. Taricani that he was close to the investigation; and, in addition, Mr. Taricani
was aware that Mr. Jacob bore some animosity towards the Cranston Police
Department and, at the pertinent time, lived hundreds of miles away from Cranston.
Captain Henry additionally points out that Mr. Taricani testified that the language
“‘cover their tracks’” in the news report at issue was likely not written by him but
rather was added by a producer to make the report “‘a little more juiced-up,’” which
Captain Henry posits is evidence of reckless disregard for the truth. He further avers
that Mr. Taricani “admitted that he knew of factions within the department,
suggesting further reason to question the motivation of reports he was receiving.”
It is Captain Henry’s contention that all of the just-mentioned factors, taken
together, are indicative of a genuine issue of material fact with respect to actual
malice; he argues that “a jury could find by clear and convincing evidence that [Mr.]
Taricani had obvious reason to doubt * * * the rumors that were passed on to him
and he chose not to look further because he did not want to find further facts that
would contradict his ‘juiced up’ report.” In Captain Henry’s view, the hearing
justice failed to see “the mosaic of reckless disregard that emerges from the whole
picture.”
- 33 -
Captain Henry also contends on appeal that the hearing justice impermissibly
failed to draw inferences in his favor as shown by the hearing justice’s failure to
infer: (1) that Mr. Taricani’s testimony about not speaking to Captain Henry before
publication because he didn’t think it was a “‘big deal’” was evidence of reckless
disregard; (2) that disregarding Chief Palombo’s denials was evidence of reckless
disregard; (3) that the act of “pulling” the story was evidence of recklessness and an
attempt to avoid accountability; and (4) that Captain Guilbeault’s purported
“grudge” against Captain Henry supported an “inference of malice.”
3. Discussion
Captain Henry makes an impassioned argument to the effect that there is
sufficient evidence in this case to allow a reasonable juror to conclude that
defendants acted with actual malice. However, after our independent examination
of the record and careful reflection, we are unpersuaded. It appears to us that, in his
briefing before this Court, Captain Henry, while acknowledging that the applicable
standard is that of actual malice, actually proceeds to apply a negligence standard to
this case. Actual malice is not measured by what a reasonable, prudent person would
do, nor is it measured by a showing of ill will or of malice in the ordinary sense. See
St. Amant, 390 U.S. at 731; see also Harte-Hanks Communications, Inc., 491 U.S.
at 666-67. Actual malice requires something quite different; it requires a showing
of knowledge of the falsity of the defamatory statement or reckless disregard for
- 34 -
whether or not it is false. See New York Times Co., 376 U.S. at 279-80. It creates
an exceptionally high hurdle for a defamation plaintiff to overcome. See McFarlane,
91 F.3d at 1515 (“[T]he standard of actual malice is a daunting one.”) (internal
quotation marks omitted).
In assessing whether or not Captain Henry has cleared that hurdle, we begin
by looking specifically at the media defendants—Media General, Mr. Lanni, and
Mr. Taricani.23
In our opinion, after a thorough review of the record as well as Captain
Henry’s contentions and the applicable legal precedent, we would be hard-pressed
to identify even a scintilla of evidence that would be the basis for a rational factfinder
to conclude by clear and convincing evidence that the media defendants acted with
actual malice in airing the story at issue. And it should be recalled that a “scintilla
of evidence” is insufficient to overcome the instant motions for summary judgment.
Anderson, 477 U.S. at 252. Mr. Taricani relied on the information which he received
from two sources in reporting the story at issue; the deposition testimony and other
documents in the record reflect that one or both of those sources specifically named
23
We pause to note that it is clear from contemporary news reports that the
Cranston parking ticket scandal was deemed by the public to be of considerable
importance. See, e.g., Gregory Smith, Until November ticket blitz, Cranston police
had little use for overnight parking ban, The Providence Journal (Jan. 25, 2014),
https://www.providencejournal.com/article/20140125/NEWS/301259990 (last
visited July 7, 2021).
- 35 -
Captain Henry and spoke of what they indicated was his purported involvement in
the parking ticket scandal. Mr. Taricani testified at his deposition that he believed
Officer Leclerc to be a credible source because Officer Leclerc had given him
information previously about the parking ticket scandal, which information Mr.
Taricani had been able to verify from public records. What is more, Mr. Taricani
testified that he asked Officer Leclerc what he thought of Mr. Jacob (and he stated
that he might have asked another officer as well) and was told that he was a “good
cop.” He also testified that he believed Mr. Jacob in view of the fact that Mr. Jacob
told him that he had been talking with people inside the Cranston Police
Department.24 The mere fact that Mr. Jacob may have had some animosity towards
24
We note that Captain Henry points to the fact that the story at issue stated that
it was based on “[t]wo sources familiar with the ticket scandal investigation,” while
Officer Leclerc testified at his deposition that he “never used those words” when
speaking to Mr. Taricani. Captain Henry contends that that denial establishes that
there was no basis in fact for that portion of the story. However, even if we accept
Officer Leclerc’s testimony as true, Mr. Taricani knew that he had already received
correct, verifiable information about the parking ticket scandal from Officer Leclerc
and the information which he was receiving from Officer Leclerc and Mr. Jacob was
consistent with each other. Given those facts, stating that his sources were familiar
with the investigation did not rise to the level of actual malice; it may have been at
most a deviation from ideal journalistic standards, but that does not equate with
actual malice. See Newton v. National Broadcasting Co., Inc., 930 F.2d 662, 669
(9th Cir. 1990) (“Even an extreme departure from accepted professional standards
of journalism will not suffice to establish actual malice * * *.”).
Captain Henry additionally points to the fact that Mr. Taricani testified at his
deposition that the “‘cover their tracks’” portion of the story at issue must have been
added by a producer to “‘juice[ ] up’” the story as evidence of reckless disregard for
the truth. We disagree. The simple fact that a producer may have added the “‘cover
their tracks’” language does not reflect a knowledge of the falsity of the statements
- 36 -
the Cranston Police Department does not, standing alone, make Mr. Taricani’s
reliance on Mr. Jacob’s information unreasonable.
What is more, it is important to note that Mr. Taricani testified that he
subjectively believed the story to be true at the time of publication. See Harte-Hanks
Communications, Inc., 491 U.S. at 688; see also Moffatt v. Brown, 751 P.2d 939,
941 (Alaska 1988). It is not case-determinative that Officer Leclerc and Mr. Jacob
may have been passing on mere rumors; reporting those rumors without further
investigation, even if they turned out to be erroneous, may perhaps have been
negligent, but it was certainly not evidence of actual malice. See Harte-Hanks
Communications, Inc., 491 U.S. at 688 (“[F]ailure to investigate before publishing,
even when a reasonably prudent person would have done so, is not sufficient to
establish reckless disregard.”); St. Amant, 390 U.S. at 731 (“[R]eckless conduct is
not measured by whether a reasonably prudent man would have published, or would
have investigated before publishing.”); see also Hall, 490 A.2d at 505 (“Failure to
verify information, standing alone, does not constitute recklessness.”).
in the broadcast at issue or a reckless disregard for their truth or falsity; in our
opinion, that language simply constituted a reasonable inference based on the
information Mr. Taricani obtained from his sources about the involvement of
Captain Henry and Captain Antonucci in the parking ticket scandal. See, e.g.,
Tavoulareas v. Piro, 817 F.2d 762, 796 (D.C. Cir. 1987) (en banc) (“In our
view * * * managerial pressure to produce [sensationalistic] stories cannot, as a
matter of law, constitute evidence of actual malice.”). Moreover, we additionally
note that that very minute portion of the broadcast was not directly defamatory with
respect to Captain Henry.
- 37 -
Indeed, there is nothing in the record of this case to show that Mr. Taricani’s
reliance on his two sources and his reasons for finding them to be credible were in
any way reckless or that he had any serious doubts as to the veracity of what they
were relating to him.25 See St. Amant, 390 U.S. at 731. He simply relied on two
sources whom he reasonably deemed to be credible. “New York Times and its
progeny protect journalists and publishers from liability based on errors of fact that
arise from reliance on a credible source.” Newton v. National Broadcasting Co.,
Inc., 930 F.2d 662, 682 (9th Cir. 1990); see Hall, 490 A.2d at 505 (holding that the
source in question was credible in part because he had been relied on previously and
had been found to be credible in that earlier instance); see also Lyons v. Rhode Island
Public Employees Council 94, 559 A.2d 130, 131, 135 (R.I. 1989) (noting that, in
distributing reprints of an older article, the publishing party relied on the credibility
of the original author “as a syndicated columnist”). We would reiterate what we said
in Hall: “As long as the sources of the libelous information appeared reliable, and
the defendant had no doubts about its accuracy, the courts have held the evidence of
malice insufficient to support a jury verdict, even if a more thorough investigation
25
It is true, as Captain Henry points out, that Mr. Taricani did know that neither
of his sources had firsthand knowledge of Captain Henry’s involvement, but that
does not rise to the level of showing that a reasonable jury could find actual malice
by clear and convincing evidence. In our opinion, it is frankly inconsistent with
established First Amendment principles to suggest that a reporter and news agency
could not rely on any informant who did not have firsthand knowledge of what he
or she was relating to the reporter.
- 38 -
might have prevented the admitted error.” Hall, 490 A.2d at 505 (quoting Ryan v.
Brooks, 634 F.2d 726, 734 (4th Cir. 1980)); see also Lyons, 559 A.2d at 136.
Thus, despite Captain Henry’s contentions to the contrary, the media
defendants’ reliance on Mr. Taricani’s sources without any additional investigation,
such as looking for confirmation of the information which his sources provided him
or making greater efforts than he did make to contact Captain Henry before the airing
of the story at issue, did not rise to the level of actual malice. See Newton, 930 F.2d
at 669 (“Even an extreme departure from accepted professional standards of
journalism will not suffice to establish actual malice; nor will any other departure
from reasonably prudent conduct, including the failure to investigate before
publishing.”).26
It remains an established principle that purposeful avoidance of the truth can
support a finding of actual malice, but that clearly was not what happened in this
case. See Harte-Hanks Communications, Inc., 491 U.S. at 692-93. Contrary to
Captain Henry’s assertion, the fact that Chief Palombo twice denied Captain Henry’s
involvement in the parking ticket scandal to Mr. Taricani certainly does not amount
to evidence of purposeful avoidance of the truth. Indeed, “liability under the clear
and convincing proof standard of New York Times v. Sullivan cannot be predicated
26
We note as well that Mr. Lanni testified at his deposition that “[i]n an
environment like this, it’s really difficult to get non-data driven information
confirmed.”
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on mere denials, however vehement; such denials are so commonplace in the world
of polemical charge and countercharge that, in themselves, they hardly alert the
conscientious reporter to the likelihood of error.” Edwards, 556 F.2d at 121 (internal
quotation marks omitted); see also Lohrenz v. Donnelly, 350 F.3d 1272, 1285 (D.C.
Cir. 2003); see generally Rodney A. Smolla, 1 Law of Defamation § 3:65.50 (2d ed.)
(May 2021 Update) (“[A] reporter need not believe self-serving denials[;] * * * [a]
denial only serves to buttress a case for actual malice when there is something in the
content of the denial or supporting evidence produced in conjunction with the denial
that carries a doubt-inducing quality.”) (internal quotation marks omitted). As the
hearing justice stated, “[h]istory recounts the stories of many high officials whose
denials were proven false by low level sources.” It cannot plausibly be deemed to
have been reckless for the media defendants to have aired Mr. Taricani’s story
simply because Chief Palombo had denied Captain Henry’s involvement. Cf. Harte-
Hanks Communications, Inc., 491 U.S. at 691, 693 (holding the evidence to have
been sufficient to support a finding of actual malice because the published facts at
issue were denied by six witnesses prior to publication and the newspaper which
published them failed to listen to tapes of a pertinent interview which were provided
to it before publishing the story at issue). To hold otherwise with respect to
unsubstantiated denials would unsettle the bedrock on which investigative
journalism and freedom of the press are founded.
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Nor, we would add, is a retraction of the story at issue automatically an
indication of actual malice. In fact, it has been asserted that “[t]he issuance of a
prompt retraction may be utilized by a defendant to prove the absence of actual
malice.” Smolla, 1 Law of Defamation at § 3:81 (emphasis added); see, e.g., Logan
v. District of Columbia, 447 F. Supp. 1328, 1332 (D.C. 1978) (“[T]he correction
published the next day by the Post is significant and tends to negate any inference
of actual malice.”) (internal quotation marks omitted).
Finally, we would note that, in our view, there was no portion of the
information which was relayed to Mr. Taricani that was inherently improbable or for
which there would be obvious reasons to doubt the veracity thereof. See St. Amant,
390 U.S. at 732.
We have conducted an independent examination of the record in this case, and
we have carefully reviewed ample legal precedent. In doing so, we have taken
Captain Henry’s evidence as true, making every justifiable inference in his favor.
See Anderson, 477 U.S. at 255. It is our conclusion that there is insufficient evidence
upon which a reasonable jury could find, by clear and convincing evidence, that the
actions of the media defendants (even when taken as a whole) would support a
conclusion by a rational factfinder that they were taken with knowledge of the falsity
of Captain Henry’s involvement in the parking ticket scandal or with reckless
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disregard as to the truth thereof.27 With respect to the media defendants, Captain
Henry has thus failed to establish an evidentiary basis upon which a finding of actual
malice could rationally be predicated, as the constitutionalized law of defamation
unequivocally requires him to do.
We now turn to Officer Leclerc. According to Officer Leclerc’s deposition
testimony, he overheard two separate conversations which mentioned Captain
Henry’s involvement in the parking ticket scandal, although he did not know the
identity of the individuals he overheard. He further testified that he knew Captain
Antonucci and Captain Henry were related, were on the police union’s executive
board together, and stood to be deprived of a substantial monetary gain as a result of
27
We pause to briefly address Captain Henry’s contention that Mr. Taricani’s
statements in the report at issue and his testimony contradicted Officer Leclerc’s
testimony, thus creating an issue of fact for a factfinder. We are in full agreement
with the media defendants’ rebuttal to this argument: “The question before this Court
is whether the record currently contains clear and convincing evidence of actual
malice, such that a reasonable fact finder could find that the Media Appellees acted
with actual malice based on the record below, not whether there are any questions
of fact about the particulars which [Captain] Henry alleges as his evidence of actual
malice.” (Emphasis in original.) Indeed, Captain Henry must prove not that there
are inconsistencies among the deposition testimonies in this case but rather that,
when his evidence is taken as true and every inference is drawn in his favor, that
evidence is sufficient for a rational factfinder to find actual malice. See Anderson,
477 U.S. at 248 (“Factual disputes that are irrelevant or unnecessary will not be
counted.”); see also Deutsche Bank National Trust Company for Registered Holders
of Ameriquest Mortgage Securities, Inc. v. McDonough, 160 A.3d 306, 311 (R.I.
2017) (“Demonstrating mere factual disputes will not defeat summary judgment; the
requirement is that there be no genuine issue of material fact.”) (emphasis in
original) (internal quotation marks omitted).
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the City Council’s failure to approve the police union contract proposal. It was his
testimony that, for those reasons, he believed that the information he passed on to
Mr. Taricani was true. See Harte-Hanks Communications, Inc., 491 U.S. at 688(stating that the actual malice standard is subjective). It is highly unlikely that this
evidence would be sufficient for a jury to find that Officer Leclerc defamed Captain
Henry even under a negligence standard; and it is certainly insufficient under the
actual malice standard. See id. at 666-67; St. Amant, 390 U.S. at 731. Our
conclusion is not altered by the fact that Officer Leclerc did not undertake any further
investigation of the remarks that he overheard. Even given that fact, there is simply
not sufficient evidence on which a rational factfinder could find that Officer Leclerc
acted with actual malice. See, e.g., Newton, 930 F.2d at 669.
The same is true with respect to Mr. Jacob. It is true that Mr. Jacob was a
disgruntled former employee of the Cranston Police Department, but that fact alone
does not satisfy the actual malice standard. See, e.g., Kidder v. Anderson, 354 So.2d
1306, 1309 (La. 1978) (“That police officers were disgruntled and antagonistic to
their proposed chief is not necessarily an indication of their unreliability as
informants.”). There is no evidence of any kind in this case to suggest that Mr. Jacob
had any reason to doubt the veracity of his sources, even if he was merely “passing
on rumors * * *.” His actions may possibly have constituted negligence at most,
but they certainly do not rise to the level of actual malice. See Harte-Hanks
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Communications, Inc., 491 U.S. at 666-67. In our judgment, the evidence with
respect to Mr. Jacob is simply insufficient for a jury to rationally find that he acted
with actual malice.
The final defendant for us to consider is Captain Guilbeault. The complaint
alleges that Captain Guilbeault was Mr. Jacob’s source for the information
pertaining to Captain Henry, which information Mr. Jacob in turn provided to Mr.
Taricani. Even assuming arguendo that she was the source, there is no evidence that
she knew the information which she was providing to Mr. Jacob was false or that
she conveyed it with reckless disregard as to its truth or falsity. See New York Times
Co., 376 U.S. at 279-80. The only even potentially relevant piece of information
that Captain Henry points to is the fact that, according to the hearing justice’s
decision, Captain Guilbeault had a lawsuit pending against Captain Henry and the
City of Cranston. Captain Henry also contends that Captain Guilbeault purportedly
had a “grudge” against him. Those facts, even when assumed to be true, are clearly
inadequate to support a determination that Captain Guilbeault acted with actual
malice.28 See Harte-Hanks Communications, Inc., 491 U.S. at 666-67.
28
Finally, we note that Captain Henry has endeavored to equate this case with
that of Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969). In our opinion, the two
cases are radically distinguishable from one another. In Goldwater, the United
States Court of Appeals for the Second Circuit held that the evidence at issue
established that the appellants had acted with actual malice. Goldwater, 414 F.2d at
340. However, in that case, there was evidence of a “possible preconceived plan to
attack Senator Goldwater regardless of the facts;” evidence that the only source for
- 44 -
In reaching our conclusion that there is no evidence in this case on which a
rational juror could find that defendants acted with actual malice, we are cognizant
of the following statement by the United States Supreme Court: “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
732; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974). Additionally,
it is axiomatic that “the interest of a public figure in the purity of his reputation
cannot be allowed to obstruct that vital pulse of ideas and intelligence on which an
informed and self-governing people depend. It is unfortunate that the exercise of
liberties so precious as freedom of speech and of the press may sometimes do harm
that the state is powerless to recompense: but this is the price that must be paid for
the blessings of a democratic way of life.” Edwards, 556 F.2d at 122; see Gertz, 418
U.S. at 342 (“[W]e have been especially anxious to assure to the freedoms of speech
and press that ‘breathing space’ essential to their fruitful exercise.”) (internal
quotation marks omitted); see also Harte-Hanks Communications, Inc., 491 U.S. at
the conclusion that Senator Goldwater had a “paranoiac personality” was based on
a “non-expert evaluation of Senator Goldwater’s life and political career;” and
evidence that numerous statements in the article at issue seemed to be wholly without
support. Id. at 331-33, 340. No evidence remotely approaching that magnitude is
present in the record of this far less egregious case.
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686. It is true that, when the media operate under the protection of the actual malice
standard (as is the case when the subject of a broadcast is a public official or a public
figure), mistakes will inevitably be made and individual reputations will sometimes
be sullied. That is regrettable, but inevitable—and hopefully rare. See Ryan, 634
F.2d at 733 (“We recognize that the New York Times standard is a difficult one for
libel plaintiffs to meet, and that its application may sometimes produce harsh
results.”).
Accordingly, because Captain Henry has failed to meet his burden in this case,
we affirm the hearing justice’s grant of defendants’ motions for summary judgment
with respect to the libel and slander claims against them (Counts One and Two). See
Anderson, 477 U.S. at 252, 256 (“The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient * * *. * * * The movant has the
burden of showing that there is no genuine issue of fact, but the plaintiff is not
thereby relieved of his own burden of producing in turn evidence that would support
a jury verdict.”).
C
Captain Henry’s Remaining Claims
Having determined that Captain Henry is a public official and that there is
insufficient evidence upon which a rational factfinder could conclude that
defendants acted with actual malice, we turn now to Captain Henry’s other claims—
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viz., Count Three, which alleged “[v]iolation of R.I. Gen. Laws §9-1-28.1(a)(4)” by
virtue of defendants “caus[ing] the Plaintiff to be placed before the public in a false
position” (commonly referred to as a “false light” claim); and Count Four, which
alleged negligent and intentional infliction of emotional distress.
These additional claims asserted by Captain Henry must also fail because of
the basic principle in the domain of media law that “one may not breathe life into an
otherwise doomed defamation claim by re-baptizing it as a different cause of action.”
Trainor v. The Standard Times, 924 A.2d 766, 769 n.1 (R.I. 2007); see Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988) (“We conclude that public figures
and public officials may not recover for the tort of intentional infliction of emotional
distress by reason of publications such as the one here at issue without showing in
addition that the publication contains a false statement of fact which was made with
‘actual malice’ * * *.”); Shay v. Walters, 702 F.3d 76, 83 (1st Cir. 2012) (Selya, J.)
(“The Supreme Court has made it pellucid that a failed defamation claim cannot be
recycled as a tort claim for negligent or intentional infliction of emotional distress.”);
Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003) (upholding the dismissal of the
plaintiff’s emotional distress claim because it was “premised on precisely the same
facts as his defamation claim”); Leidholdt v. L.F.P. Inc., 860 F.2d 890, 893 n.4 (9th
Cir. 1988) (“An emotional distress claim based on the same facts as an unsuccessful
libel claim cannot survive as an independent cause of action[.]”); see also Correllas
- 47 -
v. Viveiros, 572 N.E.2d 7, 13 (Mass. 1991) (“A privilege which protected an
individual from liability for defamation would be of little value if the individual were
subject to liability under a different theory of tort.”). The United States Supreme
Court has stated that this standard “reflects [the Court’s] considered judgment that
such a standard is necessary to give adequate ‘breathing space’ to the freedoms
protected by the First Amendment.” Hustler Magazine, Inc., 485 U.S. at 56.
For these reasons, it is our unconditional opinion that, in the instant case, the
hearing justice did not err in granting defendants’ motions for summary judgment
on all counts in the complaint.
This case is a classic example of the venerable maxim: “Dura lex sed lex” (It
is a harsh law, but it is the law). While we are confident that we have correctly
applied the constitutionally derived principles relative to defamation actions brought
by public officials, we are not in the least insensitive to the unfortunate effect on the
lives and reputations of real human beings that the application of those principles
can sometimes have. Such is the price that some individuals must pay as a result of
the daunting burden which public officials must bear when they seek to prevail in a
defamation action. Our sympathy for public officials who allege that they are
victims of defamation is unfeigned, but our role is to apply the constitutionally
derived principles that are operative in this domain. See, e.g., Peterson v. New York
Times Co., 106 F. Supp. 2d 1227, 1232-33 (D. Utah 2000) (“The court is in no way
- 48 -
attempting to trivialize the misfortune that [the plaintiff] has suffered. It takes a good
part of one’s lifetime to establish a good reputation, and when that hard-earned
reputation is tarnished in a mere day by an unfortunate error, one is certain to be left
in despair.”); see also Saenz v. Playboy Enterprises, Inc., 653 F. Supp. 552, 573
(N.D. Ill. 1987) (“Saenz joins a goodly company of public servants who have been
pummeled by abusive charges. * * * The constitutional balance which has been
struck does not, however, permit the use of the libel laws for the vindication he here
seeks.”), aff’d, 841 F.2d 1309 (7th Cir. 1988).
IV
Conclusion
Accordingly, we affirm the judgment of the Superior Court. We remand the
record to that tribunal.
Justice Goldberg did not participate.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Russell Henry v. Media General Operations, Inc., et
Title of Case
al.
No. 2018-169-Appeal.
Case Number
(PC 14-2837)
Date Opinion Filed July 8, 2021
Justices Suttell, C.J., Robinson, Lynch Prata, and Long, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Richard A. Licht
For Plaintiff:
Thomas M. Dickinson, Esq.
Kathleen M. Hagerty, Esq.
Attorney(s) on Appeal For Defendants:
Stephen E. Breggia, Esq.
Raymond A. Marcaccio, Esq.
Ryan C. Hurley, Esq.
SU-CMS-02A (revised June 2020)