David A. Kipper, M.D., et al. v. NYP Holdings Co., Inc., &c.

In this appeal, we must determine whether the summary judgment record contains clear and convincing evidence that defendant published a false and defamatory statement concerning the revocation of plaintiff's medical license with "actual malice," as defined in New York Times Co. v Sullivan (376 US 254 [1964]). Because it does not, we affirm the Appellate Division's grant of summary judgment to defendant.

I.

On December 7, 2003, page 24 of the New York Post's Sunday edition carried a short, eight-paragraph, "rewrite" of a 98-paragraph article taken from the Los Angeles Times's wire service. The Times article, entitled "Harsh Reality of 'Osbournes' No Laughing Matter," described the rock-singer John "Ozzy" Osbourne's allegations that his former physician, plaintiff David A. Kipper, had overprescribed various medications to him during the time that Osbourne starred in a television reality series.1 In addition, the Times article accurately stated that the California Medical Board had "moved to revoke" plaintiff's license due to his alleged gross negligence in the treatment of other patients. But the Post article, which appeared under the inaccurate headline "Ozzy's Rx doc's license pulled," contained an error. Despite clearly indicating that it was based upon "Los Angeles Times reports," the sixth paragraph of the Post rewrite incorrectly stated that "the state medical board revoked Kipper's license."

The circumstances surrounding the Post's erroneous statement are not entirely clear. The record reveals that, sometime during the evening of December 6, a Post editor assigned the task of rewriting the wire service story to a then-part-time reporter, Lyle Hasani Gittens. According to Gittens, the Post re-write was slated to appear in the second edition of the paper, the usual deadline for which was "around 8:00 to 9:00 o'clock."

Gittens swore in an affidavit and testified at his deposition that he did not recall writing and did not think he wrote that plaintiff's license was revoked, a statement that defendant concedes was both false and defamatory. He speculated that the error might have occurred during the editing process.

After Gittens prepared the re-write on a personal computer, he transmitted it to an electronic "basket" where it was reviewed by an editor. Gittens was aware that editors sometimes altered the text of articles and, as typical of such editing, he cited stylistic changes to an article's lead, or first, paragraph. But he denied having any knowledge that Post editors deliberately changed the facts of stories.

The record sheds no light on the actual editing of Gittens's rewrite. The editor responsible for it, Todd Venezia testified that he would "never deliberately" falsify information pertaining to a doctor's licensure, but he could not offer any specific details pertaining to his review of the December 7 rewrite.

Moreover, the record does not contain the original draft that Gittens submitted to Venezia.2

An affidavit submitted by the Post's Metropolitan Editor, Jesse Angelo, does, however, set forth the path that a rewrite generally travels after editorial review. At that point, it is sent to the copy desk for additional checking of grammar, punctuation and accuracy as well as any reduction in text necessary to fit the paper's layout requirements. The copy desk is also responsible for preparing headlines before the article is processed by the production department for page-setting and transmission to the printer. How these steps were accomplished prior to publication of the "Ozzy" rewrite is not revealed by the record.

Apparently, the sole source material for Gittens's rewrite was the Los Angeles Times wire service story. Gittens testified that he "did not recall" making any independent effort to verify the status of plaintiff's license prior to publication of the Post article. Additionally, Gittens remarked that Post editors would "[n]ot necessarily" engage in additional factchecking after an article's submission unless "something very conspicuous . . . leap[t] out at them." Accepting the substance of a wire service story was not unusual, according to Angelo. He averred that the Post occasionally reprints stories disseminated on reputable wire services, such as that of the Los Angeles Times, verbatim and that additional research regarding the factual accuracy of such stories is not generally undertaken.

With respect to the Los Angeles Times wire service dispatch relevant here, Angelo stated that "this is not the kind of story that [the Post] would have expected a reporter to do additional research [on]."

Nonetheless, Angelo explained that a reporter performing a rewrite may make "minor editorial changes," including "more interesting word selection," before publication in the Post. During his deposition, Gittens provided additional details about the rewriting process, stating that it essentially entailed shortening the length of a wire service dispatch and changing its "lead" paragraph "to make it more Post-like," by which he meant "less boring than the Los Angeles Times" or "[a] better read." The lead paragraph in the rewrite of which plaintiff complains, however, correctly stated that plaintiff was "under investigation for over-prescribing drugs."

On January 30, 2004 -- nearly two months after it was published -- counsel for plaintiff wrote to the Post asserting that the December 7 re-write was false and defamatory and "published with reckless disregard for the truth." The letter demanded a retraction within 14 days. The Post complied, publishing a "Correction," on page 26 of its February 9 edition, which stated that the state medical board had "moved to revoke [plaintiff's] license, although no action has as yet been taken." Plaintiff then commenced this libel suit on November 23, 2004, almost a year after the Post rewrite was first published and more than nine months after publication of the requested retraction. Following discovery, defendant moved for summary judgment. As relevant here, Supreme Court denied the motion, reasoning that defendant bore the burden of demonstrating that its misstatement regarding the status of plaintiff's license was not published with actual malice as defined by New York Times -- i.e., with knowledge of falsity or a reckless disregard for the truth.3 A unanimous Appellate Division reversed, granting defendant summary judgment and dismissing the complaint (see 47 AD3d 597, 598 [1st Dept 2008]). We granted leave to appeal and now affirm.

II.

As set forth in New York Times Co. v Sullivan (376 US 254 [1964]) and its progeny, the U.S. Constitution's First Amendment bars a public figure from recovering damages in a libel action unless clear and convincing evidence proves that a false and defamatory statement was published with "'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not" (id. at 279-280, 285- 286; Masson v New Yorker Magazine, Inc., 501 US 496, 511 [1991]; Harte-Hanks Communications, Inc. v Connaughton, 491 US 657, 666- 667 [1989]; Bose Corp. v Consumers Union of U.S., Inc., 466 US 485, 511 [1984]). The clear and convincing evidence standard is applicable to a trial court's assessment of a libel defendant's motion for summary judgment (see Anderson v Liberty Lobby, Inc., 477 US 242, 252 [1986]; see also Freeman v Johnston, 84 NY2d 52, 57 [1994]). In such a posture, the question is "whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not" (Anderson, 477 US at 255-256).

Thus, a libel defendant's burden in support of summary judgment is not, as Supreme Court reasoned, to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence (cf. Roche v Hearst Corp., 53 NY2d 767, 769 [1981]; Millus v Newsday, Inc., 89 NY2d 840, 843 [1996]). On appeal, our task is to undertake an independent review to determine whether the record evidence is capable of demonstrating actual malice with "convincing clarity" (see Freeman, 84 NY2d at 56-57). We turn then to plaintiff's argument that the record contains evidence sufficient for a reasonable jury to find that the Post published the erroneous statements regarding his license with reckless disregard for the truth.

Although incapable of "one infallible definition . . . . reckless conduct is not measured by whether a reasonably prudent [person] would have published, or would have investigated before publishing" (see St. Amant v Thompson, 390 US 727, 730-731 [1968]). Instead, to cross the constitutional threshold of actual malice, there must be "clear and convincing evidence that the author in fact entertained serious doubts as to the truth of his publication or acted with a high degree of awareness of . . . probable falsity" (see Masson, 501 US at 510 [internal citations and quotations omitted]).4 The inquiry is thus a subjective one, focusing upon the state of mind of the publisher of the allegedly libelous statements at the time of publication (see Bose Corp., 466 US at 511 n 30; Harte-Hanks, 491 US at 689).5 This decidedly Cities Communications, Inc., 82 NY2d 466, 478 [1993]). And we do not do so here. Instead, we acknowledge that "mere protestations of good faith by a defendant do not preclude establishing actual malice through other inferential or circumstantial proof" (see Smolla & Nimmer at § 23:3, 23-18). But we conclude that the facts and circumstances adduced by plaintiff in this case could not clearly and convincingly prove actual malice to the satisfaction of a reasonable jury.

high standard of culpability has been set because "it is essential that the First Amendment protect some erroneous publications as well as true ones" (see St. Amant, 390 US at 732). The actual malice standard recognizes that falsehoods relating to public figures are "inevitable in free debate" and that publishers must have sufficient "breathing space" (see Hustler Mag. Corp. v Falwell, 485 US 46, 52 [1988]) so that the First Amendment's commitment to "the principle that debate on public issues should be uninhibited, robust, and wide-open" will be realized (see Sullivan, 376 US at 270).

We agree with the Appellate Division that the present record lacks the clear and convincing evidence necessary for a jury to conclude that defendant's inaccurate statements were published with actual malice. As an initial matter, plaintiff's reliance upon the Post's failure to employ fact-checkers, to attempt to verify the status of his license prior to publication, or to identify those individuals responsible for the false headline and statement is misplaced. Put simply, such proof of "[m]ere negligence does not suffice" to establish actual malice by clear and convincing evidence (see Masson, 501 US at 510).

Conceivably, in an extreme case, a failure to investigate could be so gross as to prove a willful avoidance of knowledge (cf. Harte-Hanks, 491 US at 690-693), but this is not that case. We are concerned here with whether there is "concrete" or "affirmative evidence" (see Anderson, 477 US at 256, 257) in the record that would allow a jury to conclude with "convincing clarity" (see Freeman, 84 NY2d at 56) whether the Post's employees actually entertained serious doubts about the truth of the rewrite's inaccurate headline and sentence or that they published those statements with a high degree of awareness of their falsity. Plaintiff argues that a jury applying the New York Times actual malice standard could find in his favor because the record establishes that a Post editor fabricated the facts concerning plaintiff's licensure to make Gittens's rewrite "more sensational[]" and thereby generate increased sales. Other than the fact that the rewrite contains two erroneous statements, however, there is no evidence that Gittens, his editor Venezia, or anyone else at the Post seriously doubted the truth of the complained-of statements or was highly aware that they were incorrect prior to publication. Evidence of falsity does not equate with proof of actual malice (see Mahoney v Adirondack Publ. Co., 71 NY2d 31, 39-40 [1987]).

Given this lack of concrete proof, plaintiff relies heavily upon Gittens's testimony that the lead paragraph of a wire service article was usually edited to make it "more Post- like." But the full context of Gittens's testimony along with his affidavit, Angelo's affidavit, and Venezia's testimony, demonstrate that this short-hand phrase referred to stylistic alterations and not to the fabrication of facts. A writer can make an article a "better read" and engage in "more interesting word selection" without sacrificing factual integrity. Clearly, the First Amendment offers no shield to "calculated falsehoods" (see Harte-Hanks, 491 US at 687 n 34, quoting Garrison v Louisiana, 379 US 64, 75 [1964]; Cantrell v Forest City Publ. Co., 419 US 245, 253 [1974]), but at no point does this record even suggest that the Post set out to falsely defame plaintiff in this instance, or other individuals regularly, to increase its sales.6 Moreover, plaintiff's heavy reliance on the "more Postlike" testimony is flawed since Gittens's deposition indicates that he was using that jargon to refer to changes made to a rewrite's lead paragraph. Here, however, plaintiff does not contend that that paragraph is inaccurate.

We recognize the danger of awarding summary judgment solely upon the defendant's professions of good faith in publishing libelous material (see St. Amant, 390 US at 731-732). But the U.S. Supreme Court has instructed that a plaintiff must be held to the burden of adducing clear and convincing evidence of actual malice at the summary judgment stage so long as there has been a "full opportunity to conduct discovery" (see Anderson, 477 US at 257). Here, there was such an opportunity. But this public figure plaintiff has come forward with nothing more than a mere hope that a jury would discredit the Post employees' testimony. This is insufficient (see Anderson, 477 US at 256- 257, quoting Bose Corp., 466 US at 512 ["discredited testimony is not normally considered a sufficient basis" for defeating a proper summary judgment motion] [internal quotation and alteration omitted]). As we stated in Trails West, Inc. v Wolff (32 NY2d 207 [1973]), it is "not enough" for a libel plaintiff resisting a motion for summary judgment to rely upon "suspicion, surmise, and accusation" (see id. at 221 [internal quotation omitted]).

Rather, as in Prozeralik v Capital Cities Communications, Inc. (82 NY2d 466 [1993]), a plaintiff seeking jury resolution must point to facts and circumstances that could prove actual malice under the New York Times standard. In that case, there was evidence that a television and radio broadcaster's news employees had surmised that plaintiff was a victim of a beating and abduction possibly orchestrated by members of organized crime solely because he, like "countless" other individuals, was a restauranteur in the Niagara region (see id. at 475-476). This assumption was sheer "rootless speculation," lacking any "basis or source whatsoever" (id.). Although the defendant claimed to have verified the plaintiff's identity as the victim with a spokesperson for the Federal Bureau of Investigation prior to issuing broadcasts relaying that information to the public, the FBI's spokesperson denied having made any such confirmation (id.). Furthermore, the broadcasts occurred during a period when the defendant's stations were engaged in a ratings competition for advertising revenues and after a rival television station had already announced the name of the actual victim the night before the defendant's newscasts (id.). And although the defendant did broadcast a retraction after being made aware of its error, the retraction claimed that the FBI had previously confirmed the plaintiff's status as the victim even after the FBI spokesperson expressly told the broadcaster's news director that this had not occurred (id.). In light of these facts and circumstances, we concluded that "[w]hile falsity alone and negligence alone would not be sufficient to sustain plaintiff's burden, there is enough in this case to submit the issue of actual malice to a jury for factual resolution" (id. at 476).

The same cannot be said here. First, the possible revocation of defendant's license was accurately mentioned in a lengthy Los Angeles Times wire service article. Thus, plaintiff's license controversy was not thrust into the public eye merely on defendant's whim. Second, there is no evidence that defendant's employees intentionally or recklessly fabricated the relevant false statements. Although the actual status of plaintiff's license could be verified through an accurate reading of the Times article, this potentiality does not negate the possibility that Gittens or his editors, all working under a deadline, simply misperceived the correct statement in the Times article or draft rewrite (cf. Mahoney, 71 NY2d at 40). Certainly, there is no evidence that any Post employee deliberately avoided consulting the Times article so as to publish a more sensational, albeit concocted, story with an untarnished mental state (cf. Harte-Hanks, 491 US at 690-693 [along with other circumstantial evidence, newspaper's failure to interview key witness or to listen to available tape recordings that would verify or refute account of newspaper's source constituted an actionable "purposeful avoidance of the truth"] [internal citation omitted]).7

Third, to the extent that plaintiff contends that the Post's editors were motivated to "spice up" articles with invented facts in order to increase the newspaper's paid circulation, the December 7 rewrite would be a particularly poor vehicle for advancing that goal. The rewrite was inconspicuously placed on page 24 of the defendant's publication, where it appeared dwarfed in size by an adjacent, large-scale advertisement for home furnishings and was positioned above a blotter-style column entitled "Weird But true." In this context, it is highly unlikely that any member of the purchasing public would have chosen to buy the Post based on the complained-of rewrite. Even within the rewrite itself, the sentence relevant to plaintiff's licensure did not appear in the lead paragraph but was buried in the article's sixth of eight paragraphs. In fact, the lead paragraph correctly stated that plaintiff was "under investigation." Finally, unlike in Prozeralik, when plaintiff's counsel confronted the Post with the inaccuracy of its headline and sentence, the paper issued a full retraction within plaintiff's requested timeframe.8

In sum, a reasonable jury confronted with these facts and circumstances could not find with convincing clarity that defendant's erroneous statements were published with actual malice. Rather, the record bespeaks non-actionable mistake or negligence.9 Thus, a grant of summary judgment in defendant's favor was appropriate.

* * *

See: http://www.courts.state.ny.us/ctapps/decisions/2009/apr09/54opn09.pdf

Accordingly, the order of the Appellate Division should be affirmed, with costs.