Russell Henry v. Media General Operations, Inc.

• Court: Supreme Court of Rhode Island
• Decided: July 8, 2021
• Docket: 18-169
• Status: Published

Opinion

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

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)).

-1- 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.

-2- 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

-3- 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.

-4- 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.

-5- 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.

-6- 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

-9- 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.

- 11 - 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.

- 12 - 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.

- 13 - 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

- 14 - 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

- 15 - 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.

- 16 - 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.

- 17 - 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.”

- 18 - 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

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).

- 21 - 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

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,

- 24 - 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

- 25 - 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).

- 26 - 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

- 29 - 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

- 30 - 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.”

- 39 - 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.

- 40 - 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

- 41 - 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).

- 42 - 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

- 43 - 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.

- 45 - 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.”).

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—

- 46 - 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.

- 49 - 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)