Leon Kendall v. Daily News Publishing Co

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-4162
_____________
THE HONORABLE LEON A. KENDALL,
Petitioner
v.
THE DAILY NEWS PUBLISHING CO.
d/b/a The Virgin Islands Daily News;
JOY BLACKBURN; and JOSEPH TSIDULKO
____________
On Writ of Certiorari to the Supreme Court
of the Virgin Islands
Supreme Court No. VISC-1: 2010-00046
Argued December 6, 2012
Before: SMITH, HARDIMAN, and ROTH,
Circuit Judges
(Filed: March 8, 2013)
Howard M. Cooper
Suzanne M. Elovecky
Julie E. Green [ARGUED]
Todd & Weld
28 State Street
31st Floor
Boston, MA 02109
Counsel for Plaintiff-Petitioner
Michael L. Berry
Michael D. Sullivan [ARGUED]
Levine, Sullivan, Koch & Schulz
1760 Market Street
Suite 1001
Philadelphia, PA 19103
Kevin A. Rames
Suite 3
2111 Company Street
Christiansted, St. Croix, VI 00820
Counsel Defendants-Respondents
_____________________
OPINION
_____________________
2
SMITH, Circuit Judge.
We granted certiorari in this case to decide three
questions: (1) whether the Virgin Islands Supreme Court
correctly applied independent appellate review for actual-
malice determinations in public-figure libel suits, (2)
what the appropriate actual-malice standard is in
defamation-by-implication cases, and (3) whether the
justices should have recused themselves. We conclude
that although the Supreme Court misapplied independent
appellate review, it correctly held that Leon Kendall—a
judge formerly on the Virgin Islands Superior Court—
cannot establish actual malice for his libel claim. This
conclusion means that we need not decide the recusal
question because our plenary review makes any potential
error from the alleged bias harmless. Accordingly, we
will affirm the Court’s judgment.
I
A. Factual History
Judge Kendall contends that the Daily News and
Joy Blackburn (“the defendants” or “Daily News”)
defamed him while reporting on three events in his
judicial career: his decision to grant bail to Daniel
Castillo, his decision to place Ashley Williams under
house arrest, and his decision to retire. Most of the Daily
News’s articles admitted into evidence discussed the bail
decision. Castillo appeared before Judge Kendall in
3
March of 2007 for a preliminary hearing for a charge of
aggravated assault. The Government requested that bail
be set at $500 because he had previous encounters with
the criminal justice system: a 2003 felony conviction for
possession of stolen property and a 2004 rape charge that
(according to the Government) had been dismissed.
Castillo’s criminal record contained the 2003 conviction
but stated that the rape charge had “no known
disp[osition].” In actuality, the rape charge had been one
of nine charges which were dismissed when Castillo
entered a plea agreement for assault with a deadly
weapon. These charges and the assault conviction were
absent from the criminal record presented to Judge
Kendall. Thus, nothing presented at the hearing indicated
that Castillo had a history of violence.
Judge Kendall released Castillo on his own
recognizance. On April 6, 2007, Castillo murdered a
twelve-year-old girl. Coverage of the murder in the April
14, 2007 edition of the Daily News explained that
Castillo was free on his own recognizance on the
aggravated assault charges when he committed the
murder. After recounting the alleged facts of the assault,
the Daily News described the preliminary hearing:
“Kendall found probable cause to charge Castillo [with
assault] but released him pending trial—despite
Castillo’s history of violence including charges of rape,
assault and weapons violations.” Judge Kendall contends
this statement and similar statements in subsequent
4
articles were defamatory because they implied that he
was aware of Castillo’s violent history when, in fact, he
was not.
The second set of articles at issue covers Judge
Kendall’s decision to place Ashley Williams under house
arrest. On November 17, 2006, a jury convicted Williams
of first-degree rape, first-degree assault, and first-degree
unlawful sexual contact. After receiving the verdict, the
Government sought to have Williams remanded into
custody. Williams, however, requested that he be free
over the weekend to get his affairs in order before
reporting to prison. Judge Kendall granted Williams’s
request but placed him under house arrest.
Williams failed to report to jail the following
Monday as required by Judge Kendall’s order. Instead,
Williams refused to leave his home and threatened to
blow himself up during a five-hour standoff with police.
In a November 21, 2006 article, the Daily News reported
on the standoff and explained that Williams was at his
home because after he was “convicted of rape and
assault,” he was “allowed by a judge to spend the
weekend in the community unsupervised before he was
supposed to report to jail Monday.” The article further
explained that Judge Kendall had released Williams and
that “[t]ypically, people convicted of violent crimes . . .
are remanded into custody to await sentencing once they
are found guilty.” Judge Kendall contends that the Daily
5
News defamed him by stating that Williams was
“unsupervised” in the community when, in fact, Williams
was under house arrest at the time of the standoff with
police.
The final event at issue was Judge Kendall’s
decision to retire. In a February 19, 2009 article, the
Daily News reported on that decision in an article
subtitled “[t]hree judicial complaints against him still
pending.” This subtitle referred to three complaints filed
against Judge Kendall with the Virgin Islands
Commission on Judicial Disabilities for allegedly
misapplying the law in his bail decisions. At the time the
article was published, Judge Kendall had successfully
challenged the authority of the Commission to hold
hearings regarding the complaints in the District Court of
the Virgin Islands. This ruling, however, was still on
appeal to this Court. Judge Kendall argues that the Daily
News defamed him by stating that the complaints were
“still pending,” even though they had been dismissed by
the District Court.
B. Procedural History
On October 5, 2007, Judge Kendall filed this libel
action against the Daily News and two of its reporters,
Joy Blackburn and Joseph Tsidulko, in the Virgin Islands
Superior Court. After Judge Kendall amended his
original complaint to include the retirement article and
the parties completed discovery, the case proceeded to a
6
jury trial. The jury returned a verdict in favor of Judge
Kendall for $240,000, and against the Daily News and
Blackburn. The jury determined that Tsidulko was not
liable. The Daily News and Blackburn subsequently
moved for a judgment notwithstanding the verdict. The
Superior Court granted this motion and entered a directed
verdict in their favor.
Judge Kendall appealed the Superior Court’s
judgment to the Virgin Islands Supreme Court. Judge
Kendall requested that the justices recuse themselves
because they had initiated a criminal contempt charge
pending against him. 1 The Supreme Court denied his
request and affirmed the Superior Court’s judgment on
the narrow ground that Judge Kendall could not prove
actual malice for any of the statements. We subsequently
granted certiorari to answer three questions:
(1) whether the ‘actual malice’ standard
articulated in New York Times v. Sullivan,
376 U.S. 254, 279–80 (1964), can be
satisfied by a defendant’s mere awareness of
a defamatory implication (as opposed to an
1
The criminal contempt charge against Judge Kendall is
the subject of a separate proceeding before this panel that
is still pending and was argued on December 6, 2012. See
In re Kendall, No. 11-4471 (3d Cir. argued Dec. 6,
2012).
7
actual intent to convey that implication) and,
if so, whether the standard was satisfied in
this case;
(2) whether the Virgin Islands Supreme
Court’s review exceeded the scope of the
“independent examination” required by Bose
Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 499 (1984); and
(3) whether the Virgin Islands Supreme
Court Justices erred in not recusing
themselves from this matter.
We exercise plenary review over decisions of the
Virgin Islands Supreme Court that relate to questions of
federal constitutional law. See People of the V.I. v. John,
654 F.3d 412, 415, 417–22 (3d Cir. 2011); Pichardo v.
V.I. Comm’r of Labor, 613 F.3d 87, 98 (3d Cir. 2010).
II
Before turning to the merits, we must first examine
whether Congress has removed our jurisdiction over this
case with recent legislation that changes how decisions of
the Virgin Islands Supreme Court are reviewed by
federal courts. See In re Flat Glass Antitrust Litig., 288
F.3d 83, 88 n.5 (3d Cir. 2002) (noting that “we have an
‘independent responsibility to examine our own
8
jurisdiction sua sponte’” (quoting In re Ford Motor Co.,
110 F.3d 954, 958–59 (3d Cir. 1997))).
In the Revised Organic Act of 1954, as amended in
1984, Congress authorized the Virgin Islands legislature
to establish its own local appellate court and provided
that when it did so, we would exercise certiorari
jurisdiction over that court’s final decisions for a limited
period of institutional development. See Defoe v. Phillip,
702 F.3d 735, 738–40 (3d Cir. 2012) (laying out the
history of our relationship with the courts of the Virgin
Islands). Our certiorari jurisdiction was to last up to
fifteen years from the creation of the Virgin Islands
Supreme Court—enough time for the Virgin Islands
Supreme Court to develop “sufficient institutional
traditions [of its own] to justify direct review by the
Supreme Court of the United States.” 48 U.S.C. § 1613.
Recognizing that the Virgin Islands Supreme Court might
develop sufficient institutional traditions before the
fifteen-year mark, however, Congress required this Court
to regularly evaluate and report on its progress. Id.; see
also Defoe, 702 F.3d at 739–40. The Virgin Islands
Supreme Court passed that test with flying colors last
year when a committee of this Court recommended to the
Third Circuit Judicial Council that Congress eliminate
our certiorari jurisdiction over Virgin Islands Supreme
Court decisions in favor of direct review by the United
States Supreme Court. See Judicial Council of the U.S.
Court of Appeals for the Third Circuit, Report on the
9
Virgin Islands Supreme Court 1 (2012), available at
http://www.visupremecourt.org/wfData/files/
BookletReportofVirginIslandsSupremeCourt.pdf.
Congress agreed and quickly acted on the Third
Circuit’s recommendation. By December 13, 2012, both
the House of Representatives and the Senate had passed
H.R. 6116, a bill that would eliminate our certiorari
jurisdiction over final decisions of the Virgin Islands
Supreme Court and replace it with direct review by the
Supreme Court of the United States. See An Act to
amend the Revised Organic Act of the Virgin Islands to
provide for direct review by the United States Supreme
Court of decisions of the Virgin Islands Supreme Court,
H.R. 6116, §§ 1–2, 112th Cong. (2012). President Obama
signed H.R. 6116 into law on December 28, 2012.
We must now decide whether H.R. 6116 strips us
of our certiorari jurisdiction over cases like this one in
which certiorari has been granted and the matter is
awaiting decision at the time of the bill’s enactment. We
hold that it does not.
When interpreting a statute, we normally presume
that the statute does not apply retroactively—that is, to
cases pending on the date of the law’s enactment—absent
clear congressional intent to the contrary. Hamdan v.
Rumsfeld, 548 U.S. 557, 576 (2006) (citing Landgraf v.
USI Film Prods., 511 U.S. 244, 280 (1994)). This
presumption against retroactivity, however, does not
10
apply to statutes that only alter jurisdiction. “[U]nlike
other intervening changes in the law, a jurisdiction-
conferring or jurisdiction-stripping statute usually ‘takes
away no substantive right but simply changes the tribunal
that is to hear the case.’” Id. at 576–77 (quoting
Hallowell v. Commons, 239 U.S. 506, 508 (1916)).
Consequently, as the Supreme Court has explained, “no
retroactivity problem arises” with respect to an
intervening change in jurisdiction “because the change in
the law does not ‘impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or
impose new duties with respect to transactions already
completed.’” Id. at 577 (quoting Landgraf, 511 U.S. at
280).
“That does not mean, however, that all
jurisdiction-stripping provisions . . . must apply to cases
pending at the time of their enactment.” Id. After all,
“‘[n]ormal rules of [statutory] construction’ . . . may
dictate otherwise.” Id. (quoting Lindh v. Murphy, 521
U.S. 320, 326 (1997)). Here, Congress spoke clearly:
“[t]he amendments made by [H.R. 6116]”—that is, the
elimination of the Third Circuit’s certiorari jurisdiction
and substitution of such review by the United States
Supreme Court—“apply to cases commenced on or after
the date of the enactment of [H.R. 6116].” H.R. 6116 § 3.
No matter whether “cases commenced” carries a broader
meaning referring to the filing of a complaint in the
Superior Court or a narrower meaning referring to the
11
filing of a certiorari petition in this Court—an issue we
need not decide today—Kendall commenced this case
long before H.R. 6116’s enactment.
We are mindful that the Ninth Circuit reached the
opposite conclusion about Congress’s elimination of its
certiorari jurisdiction over the Guam Supreme Court’s
decisions. See Santos v. Guam, 436 F.3d 1051, 1054 (9th
Cir. 2006). There, the Ninth Circuit concluded that
Congress’s elimination of its certiorari jurisdiction (and
substitution of direct review by the Supreme Court of the
United States) did apply to pending cases.
But Santos is distinguishable for at least two
reasons. To the extent that Santos interprets Supreme
Court precedent as holding that jurisdiction-stripping
provisions automatically apply retroactively absent an
express reservation of jurisdiction over pending cases,
the Supreme Court subsequently rejected such an
approach in Hamdan. See Hamdan, 548 U.S. at 584(rejecting this “inflexible” rule advanced by Justice
Scalia’s dissent and by the Government). More
importantly, the jurisdiction-stripping provision in Santos
differs markedly from the one we confront here. In
Santos, the Ninth Circuit addressed a statute in which
Congress was completely silent about the effective date
of the jurisdiction-stripping provision. Santos, 436 F.3d
at 1053 (explaining that Congress did not “express[] an
intent as to the effective date”). By contrast, Congress
12
was explicit that H.R. 6116’s amendments apply only “to
cases commenced on or after the date of the enactment”
of the statute. See H.R. 6116 § 3. As a result, we retain
certiorari jurisdiction over all cases “commenced” before
the President signed H.R. 6116, including this one. See
Hamdan, 548 U.S. at 584 (drawing the negative inference
that Congress did not intend to eliminate jurisdiction over
pending detainee habeas petitions where the statute was
silent about whether its jurisdiction-stripping subsection
applied to cases even though it expressly made two other
subsections retroactive).
III
A. Independent Appellate Review
The parties disagree whether the Virgin Island
Supreme Court correctly applied the independent-
appellate-review standard applied to determinations of
actual malice. See Bose Corp., 466 U.S. at 509–11.
Independent appellate review is a two-step process. The
reviewing court first determines what credibility
determinations the jury must have made. This is done by
discarding the evidence or testimony that the “jury must
have rejected” on the basis of “the trial court’s
instructions, the jury’s answers to . . . special
interrogatories, and an understanding of those facts not in
dispute.” Harte-Hanks Commc’ns, Inc. v. Connaughton,
491 U.S. 657, 690 (1989). These “credibility
13
determinations are reviewed under the clearly-erroneous
standard.” Id. at 688.
The evidence which is not excluded by the Harte-
Hanks test is then weighed “alongside the undisputed
evidence” to determine if the defendant acted with actual
malice. Id. at 690–91. In other words, as the Ninth
Circuit explained in Eastwood v. National Enquirer, Inc.,
123 F.3d 1249 (9th Cir. 1997), “we must figure out, as
best we can from the cold record, which evidence the
jury accepted as credible, and which it discarded. Then
we must determine whether the believed evidence
establishes actual malice.” Id. at 1252.
The Virgin Islands Supreme Court did not apply
this standard in its review. At no point did the Supreme
Court analyze what credibility determinations the jury
must have made, nor did it express the need to defer to
the credibility determinations of the jury. As seen in the
two-step process described, however, “[i]ndependent
review is not a limitless ransacking of the record as a
whole. . . . Purely factual determinations (such as
credibility calls) remain subject to the usual degree of
deference.” Mandel v. Boston Phoenix, Inc., 456 F.3d
198, 208 (1st Cir. 2006). The Virgin Islands Supreme
Court thus erred by not determining whether the jury
made any credibility determinations to which it had to
accord deference.
14
B. Actual Malice
The Virgin Islands Supreme Court’s
misapplication of independent appellate review is
reversible error only if we were to reach a different result
by applying the standard appropriately. See Harte-Hanks,
491 U.S. at 689–93 (affirming a circuit court holding
even though that court had misapplied the independent-
appellate-review standard). The Virgin Islands Supreme
Court concluded that the evidence was insufficiently
clear and convincing to support a jury finding of actual
malice. Before we can decide whether that conclusion is
correct, we must resolve a dispute between the parties
regarding what constitutes actual malice in defamation-
by-implication cases. 2
In defamation-by-implication cases, the alleged
2
The Daily News contends that Judge Kendall has
waived this argument because he did not argue that the
Superior Court applied the wrong standard before the
Virgin Islands Supreme Court. We disagree because the
Superior Court used the actual-malice standard urged by
Judge Kendall. The possibility that actual malice requires
something different in defamation-by-implication cases
was first recognized and used by the Virgin Islands
Supreme Court, which means Judge Kendall is free to
argue that this is a new error perpetrated by the Supreme
Court.
15
defamatory statement has two possible meanings, one
that is defamatory and one that is not. See 50 Am. Jur. 2d
Libel and Slander § 158 (explaining that “‘[d]efamation
by implication’ occurs when a defendant juxtaposes a
series of facts to imply a defamatory connection between
them”). These cases differ from ordinary defamation
cases in which the alleged defamatory statement has only
a defamatory meaning. See id. § 118 (collecting manners
in which a statement can be defamatory); see also
Restatement (Second) of Torts § 559 (explaining that “[a]
communication is defamatory if it tends to so harm the
reputation of another as to lower him in the estimation of
the community or to deter third persons from associating
or dealing with him”) (1977). In ordinary defamation
cases, the actual-malice standard is relatively clear and
undisputed by the parties. “The Supreme Court has
defined actual malice as knowledge that a statement was
false or [made with] reckless disregard of whether it was
false or not.” Schiavone Constr. Co. v. Time, Inc., 847
F.2d 1069, 1089 (3d Cir. 1988) (quoting Sullivan, 376
U.S. at 280) (quotation marks omitted). Recklessness is
shown by demonstrating that “the defendant in fact
entertained serious doubts as to the truth of the statement
or that the defendant had a subjective awareness of
probable falsity.” Id. (internal citations and quotation
marks omitted). “[This] standard is a subjective one,
based on the defendant’s actual state of mind . . . .” Id.(citing St. Amant v. Thompson, 390 U.S. 727, 731
(1968)).
16
The parties disagree, however, on what constitutes
actual malice in defamation-by-implication cases. They
agree that there are two elements to actual malice in these
cases: a “falsity” element and a “communicative intent”
element. The parties also agree as to what satisfies the
falsity element—that is, the extent to which defendants
must be aware that the defamatory meaning of their
statement is false. For this element, the parties concur
that plaintiffs must show that the defendants either knew
that the defamatory meaning of their statement was false
or were reckless in regard to the defamatory meaning’s
falsity.
They disagree, however, over what is sufficient to
satisfy the communicative-intent element—that is, the
extent to which defendants must be aware of the
defamatory meaning of their statement. The Daily News
argues that plaintiffs can satisfy this element only by
showing that the defendants intended the defamatory
meaning. Judge Kendall agrees that intentional
communication of the defamatory meaning is sufficient
but argues that plaintiffs can also satisfy this element by
showing that the defendants were aware of the
defamatory meaning and acted recklessly in regard to it.
Resolving this disagreement requires us to answer
two questions: (1) Does the actual-malice standard apply
differently in defamation-by-implication cases than in
ordinary defamation cases such that more than
17
knowledge of falsity or reckless disregard for truth is
required (as the parties believe)? (2) If the standard is
different, then is actual malice established, on one hand,
only by showing that the defendant intended to
communicate the defamatory meaning or, on the other
hand, by showing either that the defendant intended to
communicate the defamatory meaning or was aware of
the defamatory meaning and reckless in regard to it?
We agree with the First, Sixth, Seventh, and Ninth
Circuits: plaintiffs in defamation-by-implication cases
must show something beyond knowledge of, or
recklessness in regard to, the falsity of the statement’s
defamatory meaning. Compuware Corp. v. Moody’s
Investors Servs., Inc., 499 F.3d 520, 528–29 (6th Cir.
2007); Howard v. Antilla, 294 F.3d 244, 252 (1st Cir.
2002); Newton v. Nat’l Broad. Co., Inc., 930 F.2d 662,
681 (9th Cir. 1990); Saenz v. Playboy Enters., Inc., 841
F.2d 1309, 1317–18 (7th Cir. 1988). The Supreme Court
has explained that in the libel context, “[m]alice [has
been] defined in numerous ways, but in general
depend[s] upon a showing that the defendant acted with
improper motive.” Herbert v. Lando, 441 U.S. 153, 163–
64 (1979). Showing motive “hinge[s] upon the intent or
purpose with which the publication was made.” Id.
at 164. These statements show that the intent of the
publisher is linked to determining if that publisher had
the actual malice necessary to support a libel claim. Cf.
Harte-Hanks, 491 U.S. at 688 (explaining that actual
18
malice involves a subjective inquiry into a defendant’s
mental state rather than just an objective determination of
a statement’s truth); Saenz, 841 F.2d at 1317 (“Proof of
actual malice depends upon the defendant’s actual state
of mind.” (citing Herbert, 441 U.S. at 160)).
The need to show intent necessarily means that the
actual-malice standard will have different elements of
proof in ordinary defamation cases than in defamation-
by-implication cases. In ordinary defamation cases, intent
to defame can be established solely through knowledge
that the statement was false. After all, if the defendants
knew that the statement made was false and defamatory,
then they must have intended to defame. And while the
statement itself rarely indicates whether its publisher
knew it was false, the statement does show that its
publisher knew it was defamatory because it can have
only defamatory meanings. So all a plaintiff needs to
demonstrate in ordinary defamation cases to establish
intent to defame is that the defendants knew their
statement was false.
But in defamation-by-implication cases, showing
known falsity alone is inadequate to establish an intent to
defame. In these cases, we may no longer presume with
certainty that the defendants knew they were making a
defamatory statement because the statement has
defamatory and nondefamatory meanings. Therefore, in
such cases, plaintiffs must show something that
19
establishes defendants’ intent to communicate the
defamatory meaning.
This second element of actual malice—showing
the defendant’s communicative intent—can be satisfied,
as Judge Kendall argues, by demonstrating that the
defendant either intended to communicate the defamatory
meaning or knew of the defamatory meaning and was
reckless in regard to it. This approach necessarily follows
from the Supreme Court’s inclusion of recklessness in
the actual-malice standard. Sullivan, 376 U.S. at 280.
Actual malice is a term of art that the Court has explained
“should not be confused with the concept of malice as an
evil intent or a motive arising from spite or ill will”; it
should be understood to be “a shorthand [used] to
describe the First Amendment protections for speech
injurious to reputation.” Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 510–11 (1991).
Recklessness has always been included in the definition
of actual malice under the First Amendment. See, e.g.,
Sullivan, 376 U.S. at 280 (defining actual malice as
speaking “with knowledge that it was false or with
reckless disregard of whether it was false or not”);
Masson, 501 U.S. at 510 (restating Sullivan’s definition
of actual malice). The Court has even described reckless
disregard as “the line which our cases have drawn
between false communications which are protected and
those which are not” that represents the appropriate
balancing of the interests at stake in First Amendment
20
cases. St. Amant, 390 U.S. at 731–32. Recklessness is
thus the outer limit of actual malice, which means that
the communicative-intent element of actual malice in
defamation-by-implication cases can be satisfied by
reckless disregard for the defamatory meaning of a
statement.
This approach is supported by the First, Sixth, and
Seventh Circuits. These courts have stated that to find
actual malice in defamation-by-implication cases, the
plaintiff must “show with clear and convincing evidence
that the defendants intended or knew of the implications
that the plaintiff is attempting to draw from the allegedly
defamatory material.” Saenz, 841 F.2d at 1317–18; see
Compuware Corp., 499 F.3d at 528–29; Howard,
294 F.3d at 252. This formulation of the rule was first
stated by the Seventh Circuit in Saenz, which the First
and Sixth Circuits subsequently quoted without
elaboration. See Howard, 294 F.3d at 252; Compuware
Corp., 499 F.3d at 528–29. Admittedly, this statement of
the actual-malice standard uses the phrase “knew of the
implications” rather than “recklessness.” The Saenz
Court, however, treated the phrase “knew of” and the
word “recklessness” as synonymous, which is evident in
its rearticulation of the standard as requiring the plaintiff
to establish “that the defendants intended to imply or
were reckless toward the [defamatory] implications.”
Saenz, 841 F.2d at 1318. The actual-malice standard we
21
adopt is thus the same as that articulated by the Seventh
Circuit and later adopted by the First and Sixth Circuits.
We emphasize the recklessness conception of this
test rather than the “know of” conception because
recklessness conforms more closely with the Supreme
Court’s definition of actual malice. Furthermore, mere
knowledge of the defamatory meaning of a statement that
also has a nondefamatory meaning cannot be enough.
The Supreme Court’s balancing of the First Amendment
interests in public-affairs libel suits favors permitting
some libelous conduct to avoid chilling protected speech.
See St. Amant, 390 U.S. at 731–32 (explaining that the
recklessness standard is preferable to a reasonable-man
standard because “protect[ing] some erroneous
publications as well as true ones” is necessary “to insure
the ascertainment and publication of the truth about
public affairs”). Yet if mere knowledge were sufficient to
find defamatory intent, then actual malice could be found
no matter how unlikely it is that a listener would interpret
the statement as having the defamatory meaning. This is
contrary to the Supreme Court’s preference for a broader
scope of protection for potentially libelous speech.
Recklessness, by contrast, captures this preference
because it requires that the defendants knew that the
defamatory meaning was not just possible, but likely, and
still made the statement despite their knowledge of that
likelihood. Cf. Harte-Hanks, 491 U.S. at 688 (defining
reckless disregard for the truth as instances where “the
22
defendant actually had a high degree of awareness of
probable falsity”).
The defendants rely on the Ninth Circuit’s Newton
decision,3 which does not include reckless disregard for,
or knowledge of, the defamatory meaning in its
articulation of the communicative-intent element.
930 F.2d at 681 (explaining that libel liability cannot be
permitted for “what was not intended to be said”). The
Newton Court did not consider, much less reject, whether
the communicative-intent element may be satisfied by
showing a reckless disregard for the defamatory meaning
of a statement. See 930 F.2d at 681. The decision thus
does not necessarily conflict with the standard we now
adopt. See Howard, 294 F.3d at 254 (treating the Ninth
Circuit’s Newton decision as compatible with the Seventh
Circuit’s Saenz decision). Moreover, to the extent the
Ninth Circuit’s usage provides any persuasive value to
the defendants’ argument, that value is outweighed by the
3
The defendants cite several additional cases to support
their argument. These decisions, however, do not discuss
the actual-malice standard. Instead, they analyze what
needs to be shown to satisfy the state-law elements of
libel in defamation-by-implication cases. See Nichols v.
Moore, 477 F.3d 396, 402 (6th Cir. 2007); Chapin v.
Knight-Ridder, Inc., 993 F.2d 1087, 1092–93 (4th Cir.
1993); White v. Fraternal Order of Police, 909 F.2d 512,
518–19 (D.C. Cir. 1990).
23
inclusion of recklessness in the Supreme Court’s
definition of actual malice.
IV
We next consider whether the Virgin Islands
Supreme Court erred by ruling that Judge Kendall cannot
establish actual malice. We will reverse the Supreme
Court only if our independent review of the record shows
that a jury could find actual malice by clear-and-
convincing evidence. Tucker v. Fischbein, 237 F.3d 275,
284 (3d Cir. 2001). This standard “requires the [plaintiff]
to provide evidence so clear, direct, weighty, and
convincing as to enable a clear conviction, without
hesitation, about whether or not the defendants acted” in
a way that renders them liable. See Amica Mut. Ins. Co.
v. Fogel, 656 F.3d 167, 179 (3d Cir. 2011) (citation and
internal quotation marks omitted). Judge Kendall
contends that the Virgin Islands Supreme Court erred by
holding that the evidence is insufficient to find actual
malice for statements made in the articles relating to his
release of Castillo on his own recognizance, his decision
to place Williams under house arrest, and his decision to
retire. We agree with the Supreme Court’s ruling in its
entirety and will thus affirm.
A. Castillo Articles
Judge Kendall argues that the defendants’ articles
relating to his bail decision in Daniel Castillo’s case are
24
defamatory because they implied that he knew of
Castillo’s history of violence when he released Castillo
on his own recognizance. The defendants’ articles
contained the statement (or statements similar to):
“Kendall found probable cause to charge Castillo but
released him pending trial—despite Castillo’s history of
violence including charges of rape, assault and weapons
violations.” Although this statement does not explicitly
say that Judge Kendall released Castillo despite knowing
of his history of violence, Judge Kendall contends that
this is the implication the defendants intended readers to
understand. As we have explained, to show actual malice
for defamation by implication, Judge Kendall must show
by clear-and-convincing evidence both (1) that the
defendants either intended the defamatory meaning or
knew of the defamatory meaning and were reckless in
regard to it, and (2) that the defendants made the
statement with “knowledge that [the] statement was false
or [with] reckless disregard of whether it was false or
not,” Schiavone Constr. Co., 847 F.2d at 1089 (quoting
Sullivan, 376 U.S. at 280) (quotation marks omitted).
Judge Kendall first argues that we must disregard
the testimony of Blackburn, who authored the articles,
because the jury must have found her testimony
incredible. See Harte-Hanks, 491 U.S. at 690. We agree.
Blackburn testified that when she wrote the statement,
she intended a nondefamatory meaning that “Mr. Castillo
had a history of violence and Judge Kendall did choose
25
to release him.” The jury must have concluded that this
testimony was incredible because to decide otherwise—
that Blackburn did not intend the defamatory meaning—
would have prevented them from finding actual malice,
as they did. We thus cannot consider Blackburn’s
testimony about the meaning of her statement.
The jury’s rejection of her testimony does not end
our analysis, however. Mere disbelief of a defendant’s
statement ordinarily is insufficient to establish malice.
Bose, 466 U.S. at 512 (“When the testimony of a witness
is not believed, the trier of fact may simply disregard it.
Normally the discredited testimony is not considered a
sufficient basis for drawing a contrary conclusion.”).
Judge Kendall argues that the communicative-intent
element of actual malice is satisfied through Blackburn’s
coverage of protests that followed Castillo’s murder of a
12-year-old girl. Judge Kendall contends that even if the
defendants were initially unaware that their statement
could imply that he was aware of Castillo’s history of
violence when he released him on his own recognizance,
they were made aware through the protests organized by
people who, as Blackburn acknowledged at trial,
“understood that Judge Kendall had released Mr. Castillo
despite his history of violence.” Once the defendants
were aware of what the public understood their statement
to mean, he argues, their continued publication of the
statement was at least reckless.
26
This evidence is insufficient to satisfy the
communicative-intent element by clear-and-convincing
evidence in light of the subjective nature of the actual-
malice inquiry. Schiavone Constr. Co., 847 F.2d at 1089(quoting St. Amant, 390 U.S. at 731). The subjective
nature of this inquiry requires that there be some
evidence showing, directly or circumstantially, that the
defendants themselves understood the potential
defamatory meaning of their statement. Id. (quoting St.
Amant, 390 U.S. at 731). No direct evidence in the record
of this case suggests that the defendants themselves knew
of, much less intended, the defamatory meaning.
There is also no circumstantial evidence of record
linking the protestors’ understanding of what took place
with the statement made by the defendants. The
protestors’ testimony did not establish that the Daily
News was their source. The protesters could not recall at
trial whether their source was the statements by the Daily
News or coverage from other Virgin Islands news outlets.
If the Daily News’s reporting had been the sole source of
information for Castillo’s case, then Judge Kendall
would have a stronger basis for inferring the defendants’
knowledge of and recklessness with regard to the
defamatory meaning of the statement. But here, the story
was covered by several news outlets, which makes it
impossible to know whether the protests were caused or
informed by the defendants’ statements. Consequently,
we cannot conclude with “clear conviction” and “without
27
hesitation” that the defendants were made aware of the
defamatory meaning of their statement through their
coverage of the protests. Amica Mut. Ins. Co., 656 F.3d
at 179 (explaining what satisfies the clear-and-
convincing standard). Because Judge Kendall cannot
establish that the defendants intended the defamatory
meaning or knew of it and were reckless in regard to it,
he fails to prove actual malice by clear-and-convincing
evidence.4
B. Williams Articles
Judge Kendall next argues that the Daily News’s
articles regarding Ashley Williams are defamatory
because they stated that Judge Kendall allowed Williams
“to spend the weekend in the community unsupervised.”
In fact, Judge Kendall had placed him under house arrest.
This is an ordinary defamatory statement rather than one
by implication, so to establish actual malice, Judge
Kendall must show that the statement was made with
“knowledge that [the] statement was false or [with]
reckless disregard of whether it was false or not.”
4
Because Judge Kendall needs to show both elements of
actual malice to succeed, and we conclude that he cannot
satisfy the communicative-intent elements, we need not
address whether he can prove that the defendants knew of
or recklessly disregarded the Castillo articles’ falsity.
28
Schiavone Constr. Co., 847 F.2d at 1089 (quoting
Sullivan, 376 U.S. at 280) (quotation marks omitted).
There is no evidence that the defendants knew
their statement was false. Blackburn, who authored this
article, was not informed that the statement was incorrect
until litigation commenced. Judge Kendall argues,
however, that Blackburn’s testimony demonstrates actual
malice through recklessness. He contends that the jury
must have determined from her testimony that she
fabricated her “unsupervised” description because she
did not have a source for the assertion. Fabrication may
constitute recklessness, St. Amant, 390 U.S. at 732, but
the jury did not necessarily conclude that she was without
a source for her article. The relevant testimony is:
Q: You didn’t tell [the public] that
[Williams] had been placed under house
arrest with arrangements to be made by the
Marshals, right?
A: No one there that night, none of those
officers who were there, not a single one of
them were saying, oh, Mr. Williams is under
house arrest.
Q: Did you ask that question?
A: No, sir.
29
...
Q: Miss Blackburn, did you walk over to
any of those people, those law enforcement
people, and say, could you tell me what’s
going on here? What are the circumstances
of Mr. Williams being in his home?
You had already written your story two days
earlier. You knew he had been convicted.
A: Yeah, I knew he had been convicted. And
–
Q: So, didn’t you think it was important,
before you told the community that Judge
Kendall had just let him out unsupervised in
the community, to be accurate and truthful?
A: Nobody who was there was saying the
man is supervised.
...
Q: Now, you claimed, as I understand it, that
the source for the words that you used
“released unsupervised in the community”
was Assistant Attorney General Renee
Gumbs Carty who said those words to you
on a telephone call in which another
Assistant Attorney General name[d] Kerry
30
Drue supposedly was listening in. Is that
your testimony?
A: . . . Yes, sir.
Q: And I just want to be very clear for the
jury.
Your testimony under oath is that Renee
Gumbs Carty said to you in a telephone call
in which Attorney General Kerry Drue . . .
was on the phone as well, that Judge
Kendall had released Mr. Williams for the
weekend unsupervised in the community. Is
that your testimony?
A: My recollection is that they send [sic]
him home for the—that they said that the
Judge—at the request of the defense that the
Judge sent Mr. Williams home for the
weekend to get his affairs in order.
Q: Did they tell you that Judge Kendall had
released Mr. Williams for the weekend
unsupervised in the community; yes or no.
A: I told you what my recollection of what
they said to me was.
Q: So they didn’t tell you that.
31
A: They said at the request of the defense,
again, that Judge Kendall allowed him to go
home for the weekend to get his affairs in
order.
Q: Did they use the word “unsupervised”—
words “unsupervised in the community,”
Miss Blackburn? Yes or no.
A: I don’t recall them using the word
“unsupervised.”
The only conclusion the jury must have drawn from this
testimony is that none of the officers at the standoff and
none of the prosecutors Blackburn spoke with told her
that Williams was released into the community
“unsupervised.” This is a necessary conclusion because if
the jury believed that the officers or the prosecutors did
tell her this, then there would be direct evidence that
Blackburn believed that Williams was, in fact,
unsupervised.
Importantly, the jury did not necessarily conclude
that Blackburn lacked a source for her story. To reach
that conclusion, the jury would have needed to make the
inferential conclusions that being sent “home” is different
from being “unsupervised” and that the officers’ lack of
discussion of supervision was irrelevant to whether
Blackburn had a source. Although these are reasonable
inferences, they are not ones we need to defer to under
32
independent review if our review of the evidence brings
us to a contrary conclusion. See Harte-Hanks, 491 U.S.
at 690; Newton, 930 F.2d at 670–71 (explaining that in
the independent-appellate-review context, the
“presumption of correctness” of jury determinations
“applies with less force when a factfinder’s findings rely
on its weighing of evidence and drawing inferences”).
The evidence does not support the conclusion that
Blackburn fabricated her story. The parties agree that she
was at the scene of Williams’s standoff, and her
testimony shows that the officers did not tell her that
Williams was under house arrest. Furthermore, the
prosecutors explained that Judge Kendall sent Williams
“home.” 5 Finally, there is no evidence that Blackburn had
any information that Williams was under house arrest.
Cf. Schiavone Constr., 847 F.2d at 1090 (explaining that
recklessness can be found where “the defendant finds
internal inconsistencies or apparently reliable information
that contradicts [the defendant’s] libelous assertions, but
nevertheless publishes those statements anyway”).
Blackburn’s conclusion that Williams was unsupervised
is thus reasonably derived from her observations at the
5
We may consider Blackburn’s testimony regarding
what the officers and prosecutors told her because the
jury did not necessarily reject it. They likely gave it little
weight, but their weighing of the evidence is accorded
little deference under our standard of review.
33
scene and her knowledge that he was sent “home.”
Although she could have done more to verify the facts of
her story, the information she had assembled shows that
her conclusion was not fabricated. Actual malice thus
cannot be established on the basis that the defendants
fabricated the story.
Judge Kendall’s alternative basis for actual malice
is that Blackburn should have done more to verify the
facts of her Williams article. She was at least reckless
regarding her story’s falsity, he argues, because she never
sought the transcript of the hearing in which Judge
Kendall imposed house arrest. This cannot serve as a
basis for finding actual malice, however, because “failure
to investigate before publishing, even when a reasonably
prudent person would have done so, is not sufficient to
establish reckless disregard” absent some evidence
showing that the defendant seriously doubted the truth of
the statement. Harte-Hanks, 491 U.S. at 688. The lack of
evidence showing any doubt, coupled with the
determination that the story was not fabricated, means
that there is insufficient evidence that the defendants
acted with actual malice.
C. Retirement Article
Finally, Judge Kendall argues that the Daily
News’s article regarding his retirement is defamatory
because the subtitle stated that there were “[t]hree
34
judicial conduct complaints against him still pending.”6
This statement is false, he contends, because the
complaints had been dismissed by the District Court of
the Virgin Islands (though the District Court’s ruling was
still pending on appeal).7 This is an ordinary defamatory
statement, so to establish actual malice, Judge Kendall
must show that the statement was made with “knowledge
that [the] statement was false or [with] reckless disregard
of whether it was false or not.” Schiavone Constr. Co.,
847 F.2d at 1089 (quoting Sullivan, 376 U.S. at 280)
(quotation marks omitted).
6
The defendants contend that this argument is not within
our grant of certiorari for “whether the Virgin Islands
Supreme Court’s review exceeded the scope of the
‘independent examination’ required in Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499
(1984).” Judge Kendall’s argument is within the scope of
our grant of certiorari because he contends that the Virgin
Islands Supreme Court should have deferred to the jury
with regard to the testimony of the subtitle’s author,
J. Lowe Davis, which Judge Kendall believes was
adequate to establish actual malice.
7
We assume that the alleged defamatory statement is
false because our writ of certiorari is limited to the Virgin
Islands Supreme Court’s application of independent
appellate review to its actual-malice analysis.
35
Judge Kendall argues that the evidence is
sufficient in light of the credibility determination that the
jury supposedly made regarding the testimony of the
subtitle’s author. The author testified that “[a]t the time
[she] wrote the headline of the aforementioned article,
[she] believe[d] that it was entirely accurate and did not
state or imply any fact that [she] knew to be false or
about which [she] entertained any serious doubt.” Judge
Kendall argues that the jury’s finding of actual malice
means that the jury disbelieved the author’s testimony
and that the article itself did not state that the complaints
were still pending. The jury likely made these
conclusions, but we defer only to the jury’s finding that
the author’s testimony was incredible. See Harte-Hanks,
491 U.S. at 690. We do not defer to the jury’s possible
conclusion that the article did not support the subtitle
because that conclusion requires an inference from the
text of the article, which we are free to review
independently. See id. at 688–89.
In light of the jury’s credibility determination and
our review of the remaining evidence, actual malice
cannot be established by clear-and-convincing evidence.
The jury’s disbelief of the statement’s author is not
sufficient because a plaintiff must show more than mere
disbelief to establish actual malice. Bose, 466 U.S. at 512(“When testimony of a witness is not believed, the trier
of fact may simply disregard it. Normally the discredited
testimony is not considered a sufficient basis for drawing
36
a contrary conclusion.”). Nothing in the record
demonstrates that the defendants knew their statement
was false or were reckless in regard to its falsity. The
Daily News’s description of the complaints in the body
of the article itself illustrates that it believed they were
still pending. The article describes the complaints in the
present tense—“the complaints against Kendall
include”—and it accurately reports that Judge Kendall’s
victory in the District Court was on appeal, suggesting
that a final determination of the complaints’ fate had not
been reached. 8 The absence of any evidence that the
8
The relevant portion of the article states:
Since May 2007, The Daily News has
reported on three separate complaints made
to the Commission on Judicial Disabilities
against Kendall. These complaints either
asked for an investigation into the judge’s
pattern of conduct from the bench or for his
removal.
The complaints against Kendall include:
[Description of the complaints brought
separately by Judicial Watch, the Women’s
Coalition of St. Croix, and a St. Thomas
businesswoman.]
In October 2007, Kendall filed a lawsuit in
District Court asking the court to stop the
commission from conducting any hearings
37
Daily News thought its description of the complaints as
“pending” was or could be false means that there is not
clear-and-convincing evidence to support a finding of
actual malice.
***
For these reasons, we will affirm the Virgin
Islands Supreme Court’s ruling that Judge Kendall
cannot establish the actual malice required to support his
libel claims. This conclusion means that we need not
decide whether the justices of the Supreme Court should
have recused themselves. We have explained that “failure
to disqualify . . . may be harmless error when a court of
on complaints made against him, contending
that those hearings would violate the
separation of powers doctrine and threaten
the independence of the territorial judiciary.
In that suit, Kendall contends that he
scrupulously follows the federal Bail
Reform Act but some other V.I. Judges do
not.
In Jan. 2008, Chief District Court Judge
Curtis Gomez ruled that the Virgin Islands
Commission on Judicial Disabilities has no
authority to remove judges. The commission
has appealed to the 3rd Circuit Court of
Appeals.
38
appeals will later review a ruling on a plenary basis.” In
re Sch. Asbestos Litig., 977 F.2d 764, 786 (3d Cir. 1992).
Plenary review allows us to find harmlessness because
“[a]ny bias which may have infected the district court’s
decision is fully remedied by our consideration of the
motions.” United States v. Vespe, 868 F.2d 1328, 1342
(3d Cir. 1989); see also Selkridge v. United of Omaha
Life Ins. Co., 360 F.3d 155, 170–72 (3d Cir. 2004).
As explained at the outset, we exercised plenary
review over the Virgin Islands Supreme Court’s
conclusion that Kendall cannot show actual malice
because it is a matter of constitutional law. See John, 654
F.3d at 415, 417–22; Pichardo, 613 F.3d at 98. Any
possible harm that may have been done by the Supreme
Court justices’ decision to not recuse themselves (and we
do not suggest that any harm occurred) is thus eliminated
by our own review. Our application of independent
appellate review does not change this analysis. That
standard only requires deference to jury determinations at
the trial court, and Judge Kendall does not challenge the
impartiality of either the trial judge or the jury verdict.
39