Houston v. Benttree, Ltd. Brief Opposition Petition for a Writ of Certiorari

    No.

I n  t h e

Supreme (&mxt of % Inifrfc States
October T erm , 1986

J ames N . F lem in g ,

v.
Petitioner,

W. B edford M oore, III,
Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF VIRGINIA

D. Alan Rudlin 
W. J effrey E dwards 

Hunton & Williams 
P.O. Box 1535 
Richmond. Virginia 23212 
(804) 788-8200

J. Benjamin  D ick 
Suite 2
421 Park Street 
Charlottsville, Virginia 22901

Gerald E. P oindexter 
Surry Courthouse Square 
Surry, Virginia

J . L eVonne Chambers
E ric Schnapper*

NAACP Legal Defense & 
Educational Fund, Inc. 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Samuel W. Tucker 
Hill, Tucker & Marsh 
P.O. Box 27363 
Richmond, Virginia 23261

^Counsel of Record

Attorneys for Petitioner



QUESTIONS PRESENTED

1 . What types of statements consti­
tute expressions of "opinion" that are 
absolutely privileged under the First 
Amendment?

2. Where a white plaintiff brought 
suit for libel against a black man who had 
asserted the plaintiff was prejudiced 
against blacks, was the award by an 
all-white jury of $233,333 in actual and 
punitive damages so excessive as to 
violate the First Amendment?

3. In a civil case involving 
sensitive racial issues, is the deliberate 
use of peremptory challenges by a white 
plaintiff to remove all blacks from the 
jury forbidden by Batson v. Kentucky, No. 
84-6263?

i



4. Is the decision of the Virginia 
Supreme Court inconsistent with Bose Corp. 
v. Consumers Union, 80 L.Ed.2d 502 (1984)?

ii



Parties

The parties to this action are James 
N. Fleming and W. Bedford Moore, III.

iii-



TABLE OP CONTENTS
Page

Questions Presented ............... i
Parties ............................ iii
Table of Authorities .............  vi
Opinions Below ...................  1
Jurisdiction .......     3
Constitutional Provisions

Involved ....................  4
Statement of the Case ............ 4
Manner in Which the Federal Ques­

tions Were Raised Below ....  18
Reasons for Granting the Writ .... 21

I. Certiorari Should Be 
Granted to Resolve A 
Conflict Among the 
Lower Courts Regarding 
the Scope of Consti­
tutionally Protected 
"Opinion" Under Gertz 
v. Robert Welch, Inc.,
418 U.S. 323 ( 1 874 )'V. . . . 21

- iv -



Page

II. The Award of $233,333 
Is So Excessive to 
Violate the First 
Amendment ...... . 47

III. Certiorari Should Be 
Granted to Decide 
Whether Batson v.
Kentucky~~Appl ies to 
Civil Litigation 
Regarding Racial
Issues  ............ 53

IV. The Decision Below is 
Inconsistent With Bose 
Corp. v Consumers 
Union,""80 L.Ed.2d 502 
(1984)    58

Conclusion .......     63
Table A: Lower Court Opinion

Regarding Constitutionally
Protected Expressions of
Opinion, 1974-1986..........  1a

Table B: Virginia Libel Appeals,
1925-1986....................  22a

v



Table of Authorities
C a se s  Page

Anton v. St. Louis Suburban 
Newspapers, 598 S.W.2d 
493 (Mo. App. 1980) ....... 25,36,40

Batson v. Kentucky, No. 84-
6263 ......................... i,53-57

Benjamin v. Cowles Publishing,
10 Media L. Rep. 1970
(Wash. App. 1984)   32

Blackhawk Corp. v. Ewing, 94
Cal. App. 3d 640, 156 Cal.
Rptr. 581 ( 1979) ............ 33

Block v. Desert Sun, 6 Media 
L. Rep. 1367 (Cal. App.
1980)     38

Bock v. Zittenfield, 60 Or. App.
97, 672 P .2d 1237 (1983) ___  40

Booker v. Jabe, 775 F.2d 762
(6th Cir. 1985) .............  55

Bose Corp. v. Consumers Union,
80 L .Ed.2d 502
( 1984) ............... ii,24,58-60,63

vi



Page
Bose Corp. v. Consumers Union,

692 F.2d 189 (1st Cir.
1982)   24,28

Brower v. New Republic, Inc., 7 
Media L. Rep. 1605 (N.Y.
Sup. Ct. 1981 ) ..............  44

Buckley v. Littell, 539 F.2d
882 (2d Cir. 1976) .......... 27

Burns v. Denver Post Co., 606
P.2d 1310 (Ariz. 1980) .....  36,37

Burns v. McGraw-Hill Broadcasting 
Co., Inc., 659 P.2d 1351 
(Colo. 1983) .......... 25,28,29,31

Caron v. Bangor Publishing Co.,
470 A.2d 782 (Me. 1984) ..... 40

Chalpin v. Amordian Press, 12 
Media L. Rep. 1422 (N.Y.
Sup. Ct. 1985)   36,40

Church of Scientology v. Cazares,
638 F.2d 1272 (5th Cir.
1981)    39

Cianci v. New Times Publishing 
Co., 639 F.2d 54 (2d Cir.
1980)   30,38

Costello v. Capital Cities Media,
9 Media L. Rep. 1434 (111.
App. 1982) ..................  39

- vii -



Davis v. Ross, 754 F.2d 80
(2d Cir. 1985) ..............  27,41

Economy Carpets v. Better
Business Bureau, 361 So.2d
234 (La. 1978)   35

Edwards v. National Audubon 
Society, 566 F.2d 113 
(2d Cir. 1977) .....     24,39

First Bank of Corpus Christi v.
Ake, 606 S.W.2d 698 (Tex.
Civ. App. 1980)   39

Fleming v. Albemarle County,
Civil Action No. 75-11(c)
(W.D. Va.)   6

Fleming v. Benzaquin, 454 N.E.
2d 95, 390 Mass. 175 
( 1983) ....................... 31

Fleming v. Citizens for Albemarle,
Inc., 577 F.2d 236 (4th
Cir. 1978) ..................  8,44

Foote v. Sarafyan, 432 So.2d 
877 (La. App. 4th Cir.
1982)   40

From v. Tallahassee Democrat,
Inc., 400 So.2d 52 (Fla.
App. 1981)   30

Page

- viii



Page

Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) .....  19-23,27,

34,41,47
Good Government Group of Seal 

Beach v. Superior Court,
586 P.2d 572, 150 Cal.
Rptr. 258 (1978) ............ 37

Goodrich v. Waterbury Republican- 
American, 448 A.2d 1317,
188 Conn. 107 (1982)   23,26,34

Greer v. Columbus Monthly, 8 
Media L. Rep. 2129 (Ohio 
Ct. App. 1982)   35

Gregory v. McConnell Douglas 
Corp., 17 C.3d 596, 131 
Cal. Rptr. 641, 552 P.2d 
425 ( 1 976 ) ..................  33

Hamm v. South Carolina, 409
U.S. 524 (1973)  .......... 57

Havalunch v. Mazza, 294 S.E.2d
70 (W. Va. 1981 )........ . 23

Hay v. Independent Newspapers,
Inc., 450 So.2d 293 (Fla.
App. 2 Dist. 1 984)............ 31,38

Henry v. Halliburton,690 S.W.2d
775 (Mo. 1985) ..............  25,40

ix



Page
Holy Spirit Ass'n v. Sequoia 

Elsevier Publishing Co.,
426 A. D . 2d 759 ( 1980) ......  43

Hotchner v. Castillo-Poche, 551
F .2d 910 (2d Cir. 1977) ....  27,36

Information Control Corp. v.
Genesis Computer Corp.,
611 F.2d 781 (9th Cir.
1 980) ........................  32,34

Iverson v. Crow, 639 S.W.2d 118
(Mo. App. 1982 )..............  38

Janklow v. Newsweek, 12 Media 
L. Rep. 1961 (8th Cir.
1986)(en banc) .... 24,31,34,35,37

Kapiloff v. Dunn, 340 A.2d 251
(Md. Ct. Sp. App. 1975) ...... 36

Keller v. Miami Herald Pub. Co.,
778 F.2d 711 (11th Cir.
1985) ........................  26,31

Lauderback v. American Broad­
casting Companies, 741 
F. 2d 193 (8th Cir.
1984) ...................... 24,38,39

Letter Carriers v. Austin, 418
U.S. 264 ( 1974 ) ............. 49

Lewis v. Time, Inc., 710 F.2d
549 (9th Cir. 1983) .... 35,38,40

x



Page
Lins v. Evening News, 9 Media 

L. Rep. 2380 (Mich. Ct.
App. 1983)    44

Lorain Journal Co. v. Milkovich,
88 L.Ed.2d 305 (1985) ....... 22

MacConnell v. Mitten, 638 P.2d
689 (Ariz. 1981 ) ........ . 37

Marchiondo v. Brown, 649 P.2d
462, 98 N.M. 394 ( 1982) .... . 32

Mashburn v. Collin, 355 So.2d
879 (La. 1977 ) .............  23,35

Maule v. N.Y.M. Corporation, 429 
N.Y.S.2d 891, 76 A.D. 58 
( 1980)     41

McCray v. Adams, 581 F.Supp.
493 (E.D.N.Y. 1984) ___ ..... 55

McHale v. Lake Charles American 
Press, 6 Media L. Rep.
2478 (La. App. 1980) ........  40

Medeiros v. Northeast Publishing,
8 Media L. Rep. 7500
(Mass. Super. Ct. 1982) ..... 44

Miami v. Cornett, So.2d
(No. 81-85, FTa7 D. Ct.
App.) (Jan. 29, 1985) ....... 55

Milkovich v. News Herald, 473
N.E.2d 1191, 15 Ohio St.3d
292 ( 1984) ..................  39

- xi -



Page
Miller v. Charleston Gazette,

9 Media L. Rep. 2540 (Cir.
Ct. W. Va. 1 983) ............  40

Miskovsky v. Oklahoma Publishing
Co., 459 U.S. 923 (1982) .... 23

Mr. Chow of New York v. Ste.
Jour Azur, S.A., 759 F. 2d
219 (2d Cir. 1 985) ........  23,27,30

Myers v. N.Y.M. Corporation, 429 
NY.S.2d 891, 76 AD 58 
( 1980) ....................... 41

Nash v. Keene Publishing Corp.,
10 Media L. Rep. 2281
(N.H. Supr. Ct. 1984) ......  31

National Association of Letter 
Carriers v. Austin, 213 
Va. 377 ( 1972)   49

National Association of
Government Employees v.
Central Broadcasting Corp.,
396 N.E. 996 (Mass.
1979) ........................  36

New Deal Restaurant v. WPIX,
11 Media L. Rep. 1965 (N.Y.
Sup. Ct. 1985) .............  36

New Testament Missionary
Fellowship v. Dutton, 9 
Media L. Rep. 1174 (N.Y.
Sup. Ct. 1982) ..............  43

- xii -



Page

New York Times v . Sullivan, 376
U.S. 254 (1964) ___  20,47,60,62,63

Okun v. Superior Court, 20 Cal.2d 
442, 175 Cal. Rptr. 157,
629 P.2d 1369 ( 1981 ) .......  40

Oilman v. Evans, 750 F .2d 970 (D.C.
Cir. 1984 ) ( en banc) ... 25,26,30-32,

34,44
Oilman v. Evans, 86 L.Ed.2d 278

( 1985) ....... ........ .......  23
Orr v . Argus-Press Co., 586 F.2d

1108 (6th Cir. 1978) ___  28,38,39
Pease v. Telegraph Publishing Co.,

426 A.2d 463 (N.H. 1981) .... 44
Phoenix Newspapers v. Church,

425 U.S. 908 ( 1976) ...... . . 23
Pierce v. Capital Cities

Communications, Inc., 576
F.2d 494 (3d Cir. 1978)   37

Pritsker v. Brundney, 452 N.E.2d
227 (Mass. 1983)..........,.. 30

Redco Corp. v. CBS, 11 Media 
L. Rep. 1861 (3d Cir.
1985)     28

Renwick v. News and Observer 
Pub. Co., 304 S.E.2d 593 
(N.C. 1983) .............  24,26,45

xiii



Page
Rinaldi v. Holt, Rinehart,

42 N.Y.2d 369 (1977) ........ 36,37
Rinsley v. Brandt, 700 F.2d 1304

(10th Cir. 1983) ............ 28
Ste. Amant v. Thompson, 390 U.S.

727 ( 1968)................... 52
Shelley v. Kramer, 334 U.S. 1

(1948) ....................... 55
Silsdorf v. Levine, 85 A.D.

297, 447 N .Y .S.2d 936 
(1981) ....................... 29,38

Smith v. Taylor County Pub­
lishing Co., 443 So.2d 
1042 (Fla. App. 1 Dist.
1983) ........................ 31

Spelson v. CBS, 11 Media L. Rep.
1900 (7th Cir. 1985) ....... . 40

Stones River Motors, Inc. v.
Mid-South Publishing Co.,
651 S.W.2d 713 (Tenn.
App. 1983) ... ............... 35,40

Swain v. Alabama, 380 U.S. 202 
( 1965) .................. . 53,54

Time, Inc v. Firestone, 424
U.S. 448 ( 1976) ...... ....... 61

xiv



Thiel v. Southern Pacific Co.,
328 U.S. 217 ( 1946) ..... . 56

Turner v. Murray, 90 L .Ed.2d
27 ( 1 985 ) ...... . 57-58

United States Postal Service v.
Aikens, 460 U.S. 71
(1983) ...................... 46

Wright v. Corfield, 146 Va,
637 (1926) ............... . 49

Statutes and Constitutional Provisions
First Amendment, U.S.

Constitution ...... 4,18,21,47,59,60
Fourteenth Amendment, U.S.

Constitution ........... 4,18,59,60
28 U.S.C. § 1257 ... .......... . 4
Code Va. § 18.2 .....   50
Restatement of Torts (Second)

(1976) ..................  28-30,34,42
W. Prosser, Handbook of Torts

(4th ed . 1971 ) .....     25
J. tenBreck, Equal Under Law

(1969) .777777777777777.....  43

Page

xv



Page
Carman, "Hutchinson v. Proxmire 

and the Neglected Fair 
Comment Defense: An Alter­
native to 'Actual Malice'", 
30 De Paul L. Rev. 1
(1980) ....................... 25

Note, The Fact - Opinion Distinction
in First Amendment Law: The
Need for a Bright-Line Rule, 72
Geo. L. J . 1817 (1984) ___  24

Note, Fact and Opinion After
Gertz v. Robert Welch, Inc.:
The Evolution of a Privi- 
lege, 34 Rutgers L. Rev.
81 (1981) .................... 25

- xvi -



PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF VIRGINIA

s s a s s s a s s s s s s s s s s s s s s s s s a s s s s s a s s s s s s c s s s s a s s s a s s s s a s s s s s s K s s ^ s s s s s s s s s s s s

The petitioner James N. Fleming 
respectfully prays that a writ of certio­
rari issue to review the judgment and 
opinion of the Supreme Court of Virginia 
entered in this proceeding on January 24,
1 986 , and the decisions and orders on

1
which that 1986 judgment was based.

OPINIONS BELOW
This action has been the subject of 

three separate trial court proceedings and 
appeals, each of which is described below.

The opinion of January 24, 1986, finally 
resolving this case was the last of a 
series of Virginia Supreme Court orders 
and decisions dating from 1982. The 
questions presented by this petition 
encompass issues that were addressed in 
those earlier interlocutory orders and 
opinions.



2

Following the first jury trial in 
this action, the Virginia Circuit Court 
entered on April 28, 1978, an unpublished 
Final Judgment Order, which is set out at 
p p . 1-9 of the Appendix. The decision of 
the Virginia Supreme Court reversing that 
Order and remanding for a new trial was 
issued on March 6, 1981; that opinion is 
reported at 221 Va. 884, 275 S.E.2d 632 
(1981), and is set out at pp. 10-32 of the 
Appendix.

On June 3, 1983, after a second jury 
trial, the Circuit Court issued an 
unpublished Final Judgment Order (App. 
33-39). On June 8 , 1984 , the Virginia 
Supreme Court issued an unpublished order 
granting petitioner leave to appeal to 
that court, but limiting the issues which 
would be considered on appeal. (App. 
50-53). The February 1, 1985 decision of 
the Virginia Supreme Court in that appeal,



3

sustaining the finding of liability but 
directing a remittitur, is reported at 325
S . E. 2d 713, ___ Va. ___ (1985). (App.
56-114).

Following a hearing on the amount of 
the remitt itur the Circuit Court, in an 
unpubli shed Final Judgment Order of May 
13, 1985, fixed the amount of the remit­
titur. (App. 122-125) . The Virginia
Supreme Court on January 24, 1986, refused 
the petition for appeal (App. 127-128) , 
and on March 7, 1986, denied a petition
for rehearing (App. 129-130); neither of 
these orders is officially reported.

JURISDICTION
The order of the Virginia Supreme 

Court refusing the petition for appeal was 
entered on January 24, 1986. A timely
petition for rehearing was denied on March 
7 , 1 986. On May 27, 1986, the Chief
Justice granted an order extending the



4

time for filing this petition until July 
5, 1986. This Court's jurisdiction is 
invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED 
The First Amendment to the United 

States Constitution provides in pertinent 
part:

Congress shall make no law ... 
abridging the freedom of speech, or 
of the press....

Section 1 of the Fourteenth Amendment 
provides in pertinent part:

[N]or shall any state deprive any 
person of life, liberty, or property, 
without due process of law; nor deny 
to any person within its jurisdiction 
the equal protection of the laws.

STATEMENT OF THE CASE 
This litigation arises out of a 

bitter public controversy that occurred in 
Albemarle County, Virginia, in the mid



5

1970's. The dispute was triggered by a 
proposal by petitioner, a black developer, 
to build a subdivision of low and moderate 
income homes, a development which he 
expressly announced would be open to and 
affordable by blacks as well as whites. 
Other subdivisions proposed by white 
developers had been approved in the 
county. Local officials and residents 
tenaciously opposed and ultimately 
succeeded in preventing construction of 
petitioner's proposed moderately priced 
development.

The protracted and divisive dispute 
that surrounded this project was permeated 
by charges and counter charges of racism. 
In January, 1 975, in the face of escalat­
ing opposition to his proposed project, 
petitioner sent to the county Board of 
Supervisors a letter complaining that his 
project had been treated differently than



6

previous projects, and asserting that that 
differing treatment was a result of 
petitioner's race and the race of the 
blacks who might live in the proposed 
development. (Tr. 143-45). A local 
newspaper in turn denounced petitioner, 
asserting that his letter to the Board of 
Supervisors was itself "neatly camouflaged 
racism" (DX 8).

Petitioner's initial proposal was
disapproved by the county Board of
Supervisors in January, 1975. In March,
1975, petitioner filed a civil action in
the United States District Court alleging
that his proposal had been rejected as a

2
result of racial discrimination. While 
this federal action was pending, peti­
tioner submitted a second, somewhat 
modified proposal to county authorities,

2 Fleming v. Albemarle County, Civil Action 
No. 75-11 (C) (W.D. Va.).



7

but it too was rejected. The federal 
action was tried in April, 1976. The
testimony at the federal trial revealed 
direct evidence of racial motivation on 
the part of the county officials who had 
disapproved the proposed development, 
which was to have been located near a 
county reservoir. In private meetings 
those local officials had given the 
following explanation of their reasons for 
disapproving the project:

"[C ]an you imagine two or three 
hundred niggers out there on the 
reservoir on truck inner tubes."
"Nobody around here wants a bunch of 
niggers _ shitting in the drinking 
water."

Id., transcript of April 21 , 1976, pp. 17, 
171. There was no testimony at this 
federal trial that respondent was present 
when these remarks were made.



8

In the wake of this testimony, the
district j udge announced that he was
convinced that the disapproval of the
project was the result of "hanky-panky,"
and urged the defendant officials to

4
settle the litigation.

On April 26, 1976, the county
officials agreed to a settlement providing 
for the rezoning petitioner had sought for 
his project. Immediately afterward,
however, the chairman of the Board of 
Supervisors announced a moratorium on any 
construction in the area (Tr. 516), and 
several organizations intervened in the 
federal action seeking to overturn the 
settlement. (See n. 4, supra) This 
pattern of resistance to the proposed

See Fleming v. Citizens for Albemarle, 
Inc., 577 F .2d 236, 2 38 (4th Cir. ~1978 ) , 
cert, denied, 439 U.S. 1071 (1979).



9

development continued for several years
until petitioner eventually abandoned the
project and sold the land to the Nature
Conservancy for use as a public park.

Respondent Bedford Moore, the
plaintiff in this libel action, was
characterized by his attorney as "a leader
of the opposition" to the proposed
construction (Tr. 289), and was described
by the director of the county Planning
Commission as "one of the principal
antagonists" of the project. (Tr. 442).
Moore was a prominent local resident and
the owner of a 100 acre estate abutting
the site of the proposed development.
Moore personally spoke in opposition to
the development at meetings of the
Planning Commission and Board of Supervi- 

5
sors, and an attorney representing Moore

5 Tr. 79, 142, 143, 264.



10

spoke for him at other official meetings. 
(Tr. 264, 333). Moore also discussed the 
project with the staff of the Planning 
Commission and with a member of the Board 
of Supervisors. (Tr.110, 509, 512). 
Following the April 26, 1976, consent 
agreement, Moore was among those who 
contacted the attorney who intervened to 
overturn the agreement, and Moore and his 
wife were members, respectively, of the 
two organizations on behalf of which 
intervention was successfully sought. (Tr. 
106, 287-88). Because the Board of 
Supervisors regarded Moore as one of the 
principal opponents of the project, the 
Board on several occasions requested that 
Moore meet with petitioner to attempt to 
reach an agreement regarding aspects of 
the disputed project. (Tr. 106, 118). 
These negotiations, however, ultimately 
proved unsuccessful.



The particular event that triggered 
the instant litigation occurred in 
January, 1976. On January 14, 1976, the 
Board of Supervisors voted to impose a 
moratorium on construction in the area at 
issue, thus effectively rejecting peti­
tioner's then pending proposal. Two days 
later petitioner published in a local 
newspaper a paid advertisement denouncing 
the opponents of the project. (App. 
192-194) . Most of the advertisement was 
directed at unnamed "greedy people" whose 
attitude was "I've got mine —  too bad 
about you." Petitioner argued that the 
proposed project would "provide housing 
and pleasant surroundings for working 
people", and that it was being resisted by
"no-growth people" who already were
fortunate enough to own homes. The
advertisement specifically referred to
respondent Moore as one of those " who



12

wants to deprive working people" of the 
opportunity to live in decent housing, and 
asserted that Moore "does not want any 
black people within ... sight" of his 
home. The advertisement was headed 
"Racism" .

In January, 1977, respondent Moore 
commenced this action in Virginia Circuit 
Court, claiming that the 1976 advertise­
ment was libelous. In 1978 an all-white 
jury agreed and awarded respondent $10,000 
in actual damages and $100,000 in punitive 
damages. On appeal the Virginia Supreme 
court held that the trial judge had erred 
in ruling that the advertisement was 
defamatory per se, and remanded for a new 
trial. (App.10-29). The majority opinion 
did not discuss whether the advertisement 
might constitute a statement of opinion 
that was constitutionally protected from 
attack in a libel action. Justice Harrison



13

dissented, arguing that the substance of
the advertisement was the sort of hyper-

6bole that could not constitute libel. 
Justice Harrison also expressed the view 
that the jury award of $1 10,000 was so 
large as to be "shocking." (App. 30).

On remand petitioner moved to dismiss 
this action on the ground that the 
disputed advertisement was a constitu­
tionally protected expression of opinion. 
The trial judge refused to decide whether 
the advertisement was constitutionally

"I attach little significance to the 
word 'racism' which heads the advertise­
ment. The words 'racism' and 'racist' are 
bandied about in our society with complete 
abandon.... Indeed, it would not be 
difficult to find a newspaper which 
contains a complaint by one party against 
another for some action allegedly grounded
in 'racism', or 'reverse racism1....
The language of the market place is not 
always restrained, reasonable, or tem­
perate.... [W] e should not allow the 
publication here to be the predicate of an 
action for libel...." (App. 30-32).



14

protected. Although the 1981 state 
Supreme Court opinion contained no 
reference whatever to this issue, the 
trial judge construed that 1981 decision 
to require that the case be set for 
retrial, and to preclude dismissal on any 
constitutional ground. (App. 135-37).

At the outset of the 1982 trial, 
counsel for respondent Moore, over 
petitioner's objection, exercised his 
peremptory challenges to remove all blacks 
from the jury, as he had during the 1978 
trial. The substance of the 1982 trial 
was largely a reprise of the contentions 
that were aired in the earlier public 
controversy. Respondent Moore insisted 
that he had opposed the housing develop­
ment solely because of environmental and 
other legitimate concerns, and that he was 
not biased against blacks. Petitioner 
steadfastly maintained, as he had in 1976,



- 15

his belief that Moore and others had 
opposed the project for racial reasons. In 
reply Respondent Moore's lawyer argued to 
the jury that petitioner's charge of 
discrimination was itself a "racist hoax". 
(Tr. 583). Moore acknowledged that the 
advertisement had not caused him any 
financial loss whatsoever, but asserted 
that the charge of discrimination was an 
attack on his "honor". (Tr. 89, 150). The 
jury found for respondent, and awarded him 
$100,000 compensatory damages, $250,000 
punitive damages and 12% interest on the 
punitive damages, a total of approximately 
$591,000.

Petitioner sought leave to appeal to 
the Virginia Supreme Court on a variety of 
issues. That court expressly declined to 
entertain an appeal as to most of those 
issues, refusing to decide whether the 
advertisement was a constitutionallywas



16

protected statement of opinion, or whether 
the deliberate use of peremptory chal­
lenges to exclude black jurors in a civil 
suit was unconstitutional. (App. 263-72). 
The Virginia Supreme Court granted leave 
to appeal only the amount of the verdict 
and the sufficiency of the evidence to 
support an award of punitive damages. 
(App. 50-53). With regard to those issues 
the state court held that, because 
petitioner lacked an "objective" basis on 
which to allege racial discrimination, the 
making of that charge necessarily involved 
"actual malice." The state court also 
concluded, however, that the amounts of 
actual and punitive damages awarded were 
excessive, and remanded the case to the 
trial court to set an appropriate remit­
titur. (App. 86-106).



17

On remand the Circuit Court directed 
the respondents to remit all but $233, 
333.34 of the original judgment (App. 
118-26). Petitioners sought leave to 
appeal, arguing the verdict was still 
excessive, but the Virginia Supreme Court 
denied leave to appeal. (App. 127-8). A 
timely petition for rehearing was also 
denied. (App. 129-30).

During the pendency of this litiga­
tion in the Virginia state courts peti­
tioner twice sought certiorari to review 
interlocutory decisions of the Virginia 
Supreme Court. The first petition,
seeking review of the Virginia Supreme 
Court's order limiting the issues to be 
considered in the 1985 appeal, was denied 
on October 29, 1984. 83 L.Ed.2d 302 (No.
84-382). Respondent expressly argued that



18

that petition was premature. Following 
the 1985 decision remanding the case for a 
remittitur hearing, petitioner again 
sought certiorari. No. 84-1740. That 
petition was denied on June 24, 1985. 87
L.Ed.2d 643.

MANNER IN WHICH THE FEDERAL QUESTIONS 
WERE RAISED BELOW

In a motion to dismiss argued prior 
to the 1982 trial, petitioner asserted 
that the advertisement was an expression 
of opinion "protected by the First Amend­
ment," (App. 196, 134-35, 137-39), an
argument reiterated in a similar motion 
argued during the trial. (App.242-44) 
Petitioner's 1983 Petition for Appeal to 
the Virginia Supreme Court asked that

7

7 Brief in Opposition, No. 84-382, pp. 1-7.



19

court to decide the same issue (App. 263, 
265), as did petitioner's January 30, 1986 
petition for rehearing. (App. 280).

Petitioner objected at the 1982 trial 
to respondent's use of peremptory chal­
lenges to ban all blacks from the jury 
(App. 149-50), and in a post-trial motion 
argued that the manner in which those 
challenges had been used violated his 
federal constitutional rights. (App. 190, 
225-32). In his 1983 petition for appeal 
petitioner asked the Virginia Supreme 
Court to decide whether the use of those 
challenges had violated the Fifth and 
Fourteenth Amendments. (App. 265, 267).

Following the 1982 jury verdict, 
petitioner moved to set aside the verdict 
on the ground that it was so excessive as 
to be unconstitutional under Gertz v. 
Robert Welch, Inc., 418 U.S. 323 (1974)
(App. 215-16, 218-20, 250-57). Peti-



20

tioner's 1983 petition for appeal and 1984 
brief in the Virginia Supreme Court 
reiterated that same constitutional 
contention. (App. 269-71, 273-76). 
Following the remittitur order of the 
circuit court, petitioner's 1985 petition 
for appeal argued that the modified 
verdict was still inconsistent with Gertz. 
(Petition for Appeal, No. 85-0622, pp. 15, 
17) .

During the 1982 trial petitioner 
repeatedly argued that respondent Moore 
was a public figure within the meaning of 
New York Times v. Sullivan, 376 U.S. 254 
(1964), that respondent had failed to 
demonstrate the existence of the requisite 
malice, and that the action was therefore 
barred by the First Amendment. (App. 
233-50. Subsequently petitioner moved to 
set aside the verdict on the same ground



- 21 -

(App. 1 88-89) , and asked the Virginia
Supreme Court to review that federal
constitutional question. (App. 264-67).

REASONS FOR GRANTING THE WRIT 
(1) Certiorari Should Be Granted To

Resolve A Conflict Among the Lower
Courts Regarding the Scope of Con-
st i tut ionally Protected "Opinion"
Under Gertz v. Robert Welch, Inc.,
418 U.S. 373 (1974)

In 1974 this Court held in Gertz v.
Robert Welch, Inc., 418 U.S. 323 ( 1974),
that expressions of opinion enjoy absolute

8
protection under the First Amendment.
Since that time the twelve circuit courts
of appeals, as well as courts in at least 

9
34 states, have reached widely divergent

"Under the First Amendment there is no 
such thing as a false idea. However 
pernicious an opinion may seem, we depend 
for its correction not on the conscience 
of judges and juries but on the com­
petition of other ideas." 418 U.S. at 
339-40.
A complete list of the lower court cases 
since 1974 discussing the scope of the



22

conclusions regarding what types of
statements are constitutionally protected
expressions of "opinion." In 1984-85
alone there were some 40 reported lower

10
court decisions on this issue. Recog­
nizing the importance of this issue, and 
the conflicting interpretations of Gertz 
that have emerged among the lower courts, 
six members of this Court have already 
voted on various occasions to grant 
certiorari to clarify the scope of the
constitutional protection afforded to

11
expressions of opinion.

constitutional protection afforded to 
opinions is set forth in Table A printed 
as an appendix to this brief.
See Table A, infra.
Lorain Journal Co. v. Milkovich, No. 
"84-1781, cert. denied, 58 L.Ed.2d 305 
(Nov. 4, 1985)' (Brennan J. and Marshall, 
J., dissenting from denial of certiorari) 
(The third question presented by the 
petition read, "Is First Amendment privi­
lege covering expressions of opinion 
abridged where federal and state courts in 
Ohio are bound by conflicting precedents



23

The nature of the opinion privilege
recognized by Gertz is widely regarded as
one of the most thoroughly confused issues
of contemporary constitutional law. The
lower courts have described the case law

12 13
since Gertz as "nebulous", "murky",

14 15
"uncertain" "unpredictable", an "area of

in determining the scope of protected 
opinion?"); Oilman v . Evans, No. 84-1524, 
86 L.Ed. 278 (May 28, 1985) (Rehnquist,
J ., and Burger, C.J., dissenting from 
denial of certiorari); Miskovsky v . 
Oklahoma Publishing Co . , 459 U .S . 923"
{ 1 9 8 2 ) (Rehnquist, J  . and White, J . ,
dissenting from denial of certiorari); 
Phoenix Newspapers v. Church, 425 U.S. 908 
( 1 9 76 )(Burger, C. J  . and Blackmun, J  ., 
dissenting from denial of certiorari).
Goodrich v . Waterbury Republican-Ameri- 
can, 448 A.2d 1317, 1221 , l£F~Conn. 107 " 
(1982) .
Mr. Chow of New York v. Ste. Jour Azur 
S.A.", 759 F. 2d 219, 224 (2d Cir. 198TT.
Mashburn v. Collin, 355 So.2d 879, 885 
(La. 1 977 )~  *
Havalunch v . Mazza, 294 S. E. 2d 70 , 73 (W. 
Va. 1981).

15



24 -
16

total confusion", and "difficult" or
"nearly impossible" to understand and 

1 7
apply. Commentators have been even more 
harsh in their description of the widely 
divergent lower court decisions, char­
acterizing the varying standards applied
by those courts as "contradictory and 

18
confused," "an invitation to error,

Janklow v. Newsweek, 12 Media L. Rep. 
”961, 1967 (8th Cir. 1986) (en banc)(Bow­
man, J., dissenting) ("Beauty is in the 
eye of the beholder, and it would appear 
that the result to be obtained ... is in 
the eye of the judge").
Bose Corp. v. Consumers Union, 692 F.2d 
189, 194 (1st Cir. 1982), af£ ^ 80 L.Ed.2d 
502 (1984); Edwards v. National Audubon 
Society, 556 F.2d 113, TT\ n .5 (2d Cir. 
1977); Lauderbackv. American Broadcasting 
System, 741 F. 2d 193, 195 (8th Cir. 1984 ); 
Renwick v. News and Observer Pub. Co., 304 
S.E. 2d 593, 605 (N.C. App. '1983')", rev'd on 
other grounds, 312 S.E.2d 405, 310 N.C. 
312 (1984).
Note, The Fact-Opinion Distinction in 
First Amendment Libel Law: The Need for a 
Bright-Line Rule, 72 Geo. L. J ., 1817, 1853 
(1984); see also id. at 1816 ("variety of 
[lower court] approaches"; "no consensus" 
on standards; "uncertainty").



25

uncertainty and inconsistency", "unsatis-
20

factory and unreliable", and marked by
21

"judicial confusion". The lower courts
have repeatedly recognized that they are

22
applying conflicting standards, and have

19

Note, Fact and Opinion After Gertz v . 
Robert Welch, Inc: The Evolutxon~of~~a
Pr iv i lege”  3l Rutgers L. Rev. 81, 126
(1 9 8 1). .
W. Prosser, Handbook of Torts 820 (4th ed . 
1 9 7 1).
Carman, "Hutchinson v. Proxmire and the 
Neglected Fair Comment' Defense: An
Alternative to 'Actual Malice'", 30 De 
Paul L. Rev. 1, 13 (1980).
Oilman v, Evans, 750 F.2d 970, 978(D.C.
Cir. 1984) fen banc) ("courts are divided 
in their methods of distinguishing between 
assertions of fact and expressions of 
opinion" ) ; Burns v» McGraw-Hill Broad­
casting Co ,~TncT7 659 P. 2d f3 5l", 135$
(Colo. 1983)("courts have not uniformly 
applied the distinction between facts and 
opinions"); Anton v. St. Louis Suburban 
Newspapers, 598 S.W.2cT~493, 498 (Mo. App.
1^80)("courts ... differ" on the scope of 
the Gertz privilege); Henry v . 
Halliburton, 690 S.W.2d 775, 787 (Mo.
1985)(en banc) ("courts are divided in
their methods of distinguishing between 
assertions of fact and expressions of 
opinion...").



26

bemoaned the lack of further guidance from
this Court as to the difference between a
statement of opinion and a statement of 

23
fact.

The nature of this conflict among the 
lower court decisions is far more complex 
than the conflicts usually deemed suf­
ficient to warrant a grant of certiorari. 
There are more than a dozen different 
standards being utilized by the lower 
courts to distinguish between statements 
of fact and opinion; in recent years the 
number of constitutional standards has

Oilman v. Evans, 750 F.2d at 975 (Supreme 
Court has “provided little guidance"); 
Keller v. Miami Herald Pub. Co., 778 F.2d 
711, 715 n .11 (11th Cir. 1 985)(Supreme 
Court "has provided little guidance in 
distinguishing between statements of fact 
and opinion"); Goodrich v. Waterbury 
Republican-American, 448 A.2d at 1324, 
(Supreme Court has not "fully articulated" 
"[t]he precise contours" of the opinion 
doctrine); Renwick v. News and Observer 
Pub. Co., 304 S . E. 2d at 605 (Supreme 
Court cTecisions "offer little direct 
guidance")



27

increased as the state and circuit courts
fashioned new hybrid rules from criteria
articulated in earlier opinions. The
particular standard that will be applied
by a given court at times varies unpredic-

24
tably from case to case, leaving speakers, 
the media and litigants with little 
guidance as to what statements are 
protected by Gertz in a given jurisdic­
tion. Some decisions announce several 
different standards, with no explanation 
of which standard would control when they

The decisions in the second circuit have 
utilized such varying criteria. See 
Buckley v. Littell, 539 F.2d 882, 893 (2d 
Cir. 1976)(statements are expressions of 
opinion if the meaning of the words used 
is characterized by "tremendous impreci­
sion"); Hotchner v. Castillo-Puche, 551 
F.2d 910, 913 (2d Cir. 1977)(statement is 
one of opinion if it cannot be proved 
true or false); Davis v. Ross, 754 F.2d 
80, 86 (2d Cir . 1 985 ) ( statement is opinion 
if it does not imply the existence of 
unstated defamatory factual premises); Mr. 
Chow of New York v . Ste. Jour Azur, S.A. , 
759 F. 2d 219, 226 (2d Cir7~T985)( applying 
the Oilman standards).



28

yield different results. For these 
reasons the following assessment of which 
rules now prevail in which circuits and 
states involves an unavoidable degree of

25

approximation.
The first, third , sixth, and tenth

26
circuits apply the definition of an
opinion set forth in section 566 of the

27
Restatement Torts (Second) (1976). Under

See, e.g., Burns v. McGraw-Hill Broad- 
casting, 659 P. 2d 1 351 , 1358 (standards
referred to include whether meaning of 
statement is speculative), 1358 (Restate- 
ment), 1360 (Information Control stan­
dards ) (Colo. 1 98 3 ) .

2 6 Bose Corp. v. Consumers Union, 692 F.2d 
T94; Redco Corporat ion v . CBS, 11 Media L. 
Rep. 1 861 , 1862 (3d Cir". T 9 8 5 ) ; Orr v. 
Argus-Press Co., 586 F.2d 1108,  1114 -15  
( 6 t h  Cir. 1 9 7 8 ) ;  Rinsley v. Brandt, 700 
F.2d 1304,  1309 ( 1 0 t h  Cir. 1983 ) .

27 "A defamatory communication may consist of 
a statement in the form of an opinion, but 
a statement of this nature is actionable 
only if it implies the allegation of 
undisclosed defamatory facts as the basis 
of the opinion". Restatement (Second) of 
Torts, § 566 ( 1 9 7 6 ) .



29

the Restatement a speaker has an absolute
privilege to state what conclusion he has
drawn based on disclosed or assumed facts,
so long as he or she does not imply the
existence of other unstated facts which
are false and defamatory. Utilization of
the Restatement standards has also been
endorsed by approximately seventeen 

28
states. These jurisdictions are sharply 
divided, however, regarding what the 
Restatement means. Some cases hold that a 
statement of opinion without an accom­
panying disclosure of its factual premises

29
is defamatory per se. A second line of

Restatement Appendix, v. 4, pp. 364-70 
(1981); Cumulative Pocket Part, v. 4, 
p p . 271 -84 ( 1 984); Cumulative Annual
Supplement, v. 4, pp. 308-325 (1985).
See, e.g., Burns v. McGraw Hill Broad- 
casting Co., 659 P.2d 135 ! , T359-60 (Colo. 
1983)(citing cases); Silsdorf v. Levine, 
59 N.Y. 2d 8, 13 ( 1 ) ( wThe immunity
afforded the expression of opinion obtains 
only when the facts supporting the opinion 
are set forth.")



30

decisions holds that the mere absence of
such stated or assumed facts does not
remove the constitutional protection
unless the speaker or writer goes further
and affirmatively implies that he or she

30
knows some unstated defamatory fact.

The Restatement standard, whatever
its meaning may be, has been expressly
rejected in the second and District of

31 32
Columbia Circuits. Those courts now 
apply the constitutional test formulated 
by Judge Starr in Oilman v. Evans, 750 
F.2d 970 (1984)(en banc), cert, denied 86 
L.Ed. 2d 278 (1985). The Oilman standard

See, e.g., From v. Tallahassee Democrat, 
Tnc. 4 0 0  So723~ 52, 57 (Fla. A p p T H W T T  
(opinion not accompanied by statement of 
facts still constitutionally protected); 
Pritsker v. Brudnoy, 452 N.E.2d 227, 229 
(Mass. 1983)(same).
Cianci v. New Times Publishing Co., 639 
F . 2d 54, 64-65 "(2d "Cir. 1980)":
See Mr. Chow of New York v. Ste. Jour 
Azur, S.A., 759 F.2d at 226.

32



31

relies on four distinct criteria: the
language of the alleged libel, the extent
to which the statement is verifiable, and
the social and linguistic context in which
the statement was made, 750 F. 2d at
979-83. The eighth circuit utilizes a
multi-part test that incorporates not only
the four criteria of the Oilman majority
opinion but also certain additional
criteria proposed by Judge Bork's concur- 

33
ring opinion.

In Massachusetts, Florida, Colorado,
34

New Hampshire and the eleventh circuit

Janklow v. Newsweek, 12 Media L.Rep. at 
1962, 1263, 1264 and n. 5.
Fleming v. Benzaquin, 454 N.E.2d 95, 100, 
390 Mass. 175 (1983); Smith v. Taylor
County Publishing Co., 443 SoTT3 10427 
1047 (Fla. App. 1 Dist. 1983); Hay v. 
Independent Newspapers, Inc., 450 So.2d 
293, 295 (Fla. App. 2 Dist."1984); Burns 
v . McGraw-Hill Broadcasting Co ., Inc ., 659
P . 2d 1 35T, 1 360.XCoIo7~~TMTrr~N'ash v .
Keene Publishing Corp., 10 Media L. Rep. 
2281 , 2282 (N.H. Supr. Ct. 1984) ; Keller 
v. Miami Herald Publishing Co., 778 F.2d 
711, 717 (11th Cir. 1985).



32

courts follow the three part standard 
established by the ninth circuit in 
Information Control Corp. v. Genesis 
Computer Corp. , 611 F. 2d 781 , 783-84
(9th Cir. 1 980). The factors deemed of 
controlling importance in these jurisdic­
tions are the language of the statement, 
the facts surrounding the publication, and 
whether the statement was made in the 
course of a public dispute. Unlike the 
Oilman rule, however, verifiabilty is not 
a consideration. 611 F.2d at 784.
Washington and New Mexico courts consider 
verifiability, the entire language of the 
statement, and the likely understanding of 
the audience, but attach no specific
significance to the type of controversy in

35
which the statement occurred.

Benjamin v. Cowles Publishing, 10 Media L. 
Rep. 1970, 1973 (Wash. App. 1984); Mar- 
chiondo v. Brown, 649 P.2d 462, 469, 98 
N.M. 394 ( 1 982) .

35



33

In California the consideration of
overr id ing importance is whether a
disputed remark was made in the context
of a public, political or labor
dispute , or any similar heated contro-
ver sy; the courts of that state assume
that the audience hearing such remarks
would not ordinarily treat them as
entirely factual, but could "anticipate
... the ... use of epithets, fiery

36
rhetoric or hyperbole'"'. Thus in Cali­
fornia " [sj tatements occurring in the
course of a public debate will usually be

---37
accorded the status of opinion." The
eighth circuit adheres to a similar rule 
regard ing individuals who speak out on

Gregory v. McDonnell Douglas Corp., 17 
C .3d 596, 661 ,“ 31 Cal. Rptr. 641, 552 
P . 2d 425 (1976) .

37 Blackhawk Corp. v . Ewing , 94 Cal . App. 3d 
640 , 643, 156 Cal. Rptr. 581 ( 1979).
(Emphasis added).



34

controversial issues, holding that "those
who participate willingly in public
debate 'must accept a degree of deroga-

38
tion that others need not.'" In Con­
necticut "mixed" statements combining 
assertions of both fact and opinion are
constitutionally protected only if "about

39
matters of public interest or concern." 
Statements made in the course of a public 
controversy are more likely to be deemed 
"opinion" in jurisdictions applying the 
01lman or Information Control standards, 
but such a context is of no apparent 
relevance under the Restatement. Louisiana 
courts apparently construe Gertz to 
protect only opinions about "matters of

Janklow v. Newsweek, 12 Media L.Rep. at 
1964 nT5T

39 Goodrich v. Waterbury Republ ican-Amer ican , 
T48 A .2d 1 31 7, 132 5 ( 1982 ).



public concern" and
40

"persons taking a
public position on a matter of public 

41
concern, but the eighth and ninth
circuits have expressly rejected the

42
limitation accepted in Louisiana.

Courts- in Ohio, Tennessee and Louis-
43

iana hold that statements of opinion are 
constitutionally protected only if those 
statements are made without malice. In 
Maryland whether or not an opinion is 
constitutionally protected also turns to

Mashburn v. Collin, 355 So.2d 879, 882, 
885, 889 (La. 1977); Economy Carpets v. 
Better Business Bureau, 361 So.2d 234, 
240, 242 (La. 1978).
Mashburn v, Collin, 355 So.2d at 882.
Lewis v. Time, Inc., 710 F.2d 549, 553 
(9th Cir. 19831; Janklow v. Newsweek, 12 
Media L.Rep. at 1962.
Greer v. Columbus Monthly, 8 Media L. Rep. 
2129, 2133“ (Ohio Ct. App. 1982); Stones 
River Motors, Inc. v. Mid-South Publishing 
C o . , 651 S . W. 2d 713, 723 (Tenn. App. 
198 3) ; Mashburn v . Collin, 355 So.2d at 
891 .



36

some degree on the good faith of author.
The state courts of New York and Missouri,
on the other hand, hold that expressions
of opinion are constitutionally privileged
"even if [the opinions are] falsely and

45
insincerely held."

The second circuit and state court 
decisions in Colorado, Massachusetts and 
New York have held that any assertion that 
cannot be proved true or false is neces­
sarily a privileged expression of opin- 

46
ion. In light of the difficulty of

44

Kapiloff v. Dunn, 340 A.2d 251, 262-63 
(Md. Ct. Sp. App. 1975).
Anton v. St. Louis Newspapers, Inc., 598 
S.W. 2cT 493, 499 (Mo. App. 1980 ); Rinaldi 
v. Holt, Rinehart, 42 N.Y.2d 369, 381.
t t w t t t ----------------------

Hotchner v. Cast illo-Poche, 551 F.2d 910, 
913 (2d Cir. 1977); Burns v . Denver Post, 
Inc. , 606 P .2d 1310, 1311 (Colo. App.
1980); National Association of Government 
Employees v. Central'Broadcasting~ Corp., 
396 N.E. 996, 1002 (Ma~ss". 1979); ChaTpTn 
v. Amordian Press, 12 Media L. Rep. 1422, 
1 424 (N.Y. Sup. Ct. 1985); New Deal
Restaurant v. WPIX, 11 Media L. Rep. 1965,



- 37 -

ascertaining with any certainty the 
purposes that may lie behind an indi­
vidual's actions, decisions in the third 
and ninth circuits as well as Colorado and 
Arizona indicate that accusations of
improper motives must always be treated as

47
statements of opinion. California and New
York follow the same rule for somewhat

48
different reasons.

1966 (N. Y. Sup. Ct. 1985).
Janklow v. Newsweek, 12 Media L. Rep. at 
T1T64 (governor allegedly motivated by 
personal animus toward criminal defen­
dant) ; Pierce v. Capital Cities Communi­
cations, Inc., ‘576 F. 2d 4$4, 50 3-04 (33 
Cir. 19781 (mayor allegedly motivated by 
conflict of interest); MacConnell v. 
Mitten, 638 P.2d 689, 692 TAriz. 198T) 
(reason employer dismissed plaintiff); 
Burns v. Denver Post Co., 606 P.2d 1310, 
1311 (ArFzT 1 980 ) (*' There" is no way Burns' 
opinion as to his ex-wife's motivation in 
divorcing him can be proved true or 
false").
Good Government Group of Seal Beach v. 
Superior Cour t, 5§6 F.~2ci 572 7~~5 7 6 7~T5lI 
Call Rptr. 558 ( 1 978 )( attacks on the
"subjective motives of competitors . . » 
are merely statements of opinion"); 
Rinaldi v. Holt, Rinehart, 42 N.Y.2d at



38

These widely varying standards have 
led to conflicting decisions regarding the 
constitutional status of particular 
statements. An accusation of criminal 
conduct may be a constitutionally pro­
tected expression of opinion in Florida

49
and the sixth and ninth circuits , but it
is always actionable in New York and the

50
second and eighth circuits. Calling
someone a liar is an opinion in Missouri 

51
and California, but an assertion of fact

382 ("inquiry into motivation is within 
the scope of absolute privilege").
Hay v. Independent Newspapers, 450 So.2d 
293 (Fla. App. 2 DfsY. 1984); Lewis v. 
Time, Inc., 710 F.2d 549 (9th Cir. 1983); 
Orr v. Argus-Press Co., 586 F.2d 1108 (6th 
Cir. 1978).
Silsdorf v. Levine, 59 N.Y.2d 8 (1983); 
Cianciv. New Times Publishing Co., 639 
F.2d 54, 63-64 (2d Cir. 1980); Lauderback 
v. American Broadcasting Companies, 741 
F.2d 193, 197 (8th Cir. 1984).
Iverson v. Crow, 639 S.W.2d 118, 119-20 
(Mo. App. 1982); Block v. Desert Sun, 6 
Media L. Rep. f3~67~, 1 368 (Cal. App. 
1980).

51



39

in Illinois and Ohio. The second circuit
holds that calling someone a "liar" is an
expression of opinion, but that calling
the same person a "paid liar" is a factual 

53
statement. An accusation that an indivi­
dual is "dishonest" is a factual assertion 

54
in Texas, but six other states as well as
four circuits treat as constitutionally
protected opinion assertions that an
individual is "unscrupulous", "shady,"
"sleazy", or "unethical", or has engaged

55
in "fraud", "deceit", or a "ripoff". The

52

Costello v. Capital Cities Media, 9 Media 
L. Rep. 1434, 1436-37 (lTH~App- 1982); 
Milkovich v . News Herald, 473 N. E. 2d 1191, 
15 Ohio St. 3d 292 (1984).
Edwards v. National Audubon Society, 556 
F . 2cl 113, 121-22 ( 2J~CirTT5‘77 ) .
First Bank of Corpus Christi v. Ake, 606 
S.W.2d 696, 700 (Tex. Civ. App. 1980).
Church of Scientology v . Cazares, 638 F.2d 
1272, 1289 (5th Cir. 1961 j ("ripoff") ; Orr 
v. Argus-Press Co., 586 F.2d at 1110 
( " fraud", h swindle"); Lauderback v. 
American Broadcasting Companies, 741 F.2d



40 -

constitution protects criticism of the
competence of a worker or employee in West

56
Virginia, Maine, and the seventh circuit,
but not in Oregon, Louisiana, or the

57
second circuit. Calling a television

at 195 ("rotten," "unethical"); Lewis v. 
Time Incorporated, 710 F.2d 549, 551 (9th 
Cir . 1 9 8 3) ( “ shady") ; Okun v. Superior 
Court, 29 Cal.3d 442, 451, 175 Cal. Rptr. 
157, 629 P. 2d 1 369 ((1981)("wheeler-deal- 
er"); Stones River Motors, Inc, v. 
Mid-South Pub . Co . , 651 S .W. 2d 713, 71 §* 
(Tenn. App. 1983) ("rip-off"); Foote v. 
Sarafyan, 432 So.2d 877, 879-809 (La. App.
4 Cir. 1982) ("fraud"; "deceit"); Anton v. 
St. Louis Suburan Newspapers, 598 S.W.2d 
493, 495 (Mo. App. 1980) (“sleazy") ; Henry
v. Halliburton, 690 S.W.2d 775, 789 (Mo. 
banc 1^85) ("fraud" ) ; Chalpin v. Amordian 
Press, 12 Media L. Rep. 1422 (N.Y. Sup. 
Ct. 1985) ("unbelievably unscrupulous").
Miller v. Charleston Gazette, 9 Media L. 
Rep. "25407T545 (~CTrfrCt“ W . Va. 1983) 
("second-rater"); Caron v. Bangor Pub- 
lishing Co., 470 A.2d 782, 783 (Me. 1984 j 
(police officer not "effective"); Spelson
v. CBS, 11 Media L. Rep. 1900, 1901 (7th 
Cir. 1985) (chiropracter a "medical
quae [ k] ") .

^  Bock * * * * v « Zittenfield, 66 Or. App. 97, 101, 
672 P.2d 1237 (1983) (statement by former 
employer that "I wouldn't hire him as a 
supervisor"); McHale v. Lake Charles 
American Press, 6 Media L. Rep. 2478, 2487



41 -

journalist the "worst" sportscaster in 
58

Boston is constitutionally protected in
Massachusetts, but asserting that a print
journalist is the "worst" writer at Sports
Illustrated is unprotected and libelous in 

59
New York.

The Virginia courts in the instant 
case did not merely misapply Gertz; they 
deliberately and repeatedly refused to 
apply Gertz at all. The 1982 trial court 
expressly declined to decide if the 
disputed advertisement was a constitu­
tionally expression of opinion, and the 
Virginia Supreme Court refused in both

(La. App. 1980) (investment advisor 
competence such that no bond buyer would 
reply on his opinion) ; Davis v . Ross, 754 
F.2d 80, 81 (2d Cir. 1985) (statement by 
former employer that she did "not recom­
mend" plaintiff).
Myers v. Boston Magazine Co., Inc., 403 
N .E.2d 376 (1980).
Maule v. N.Y.M. Corporation, 429 N.Y.S.2d
891, 76 A . D . 58 (1980).

59



42

1 983 and 1 986 even to consider that 
issue. (See 15-16, supra). The result in 
this case is clearly inconsistent with the 
rules in California, New York, Colorado, 
Arizona and the third and ninth circuits 
that statements about the motives of 
others are necessarily matters of opinion. 
The advertisement would doubtless be 
considered an opinion as well in at least 
some of the jurisdictions applying the 
various multi-part and Restatement 
standards. The Virginia courts, however, 
simply refused to address the central 
First Amendment issue at the heart of this 
litigation.

Far more is at stake here than a 
complex conflict among the lower courts 
regarding an important issue of constitu­
tional law. The framers of the Fourteenth 
Amendment were determined to extend the
restrictions of the First Amendment to the



43

states because, in the years after the
Civil War, as had been true in the
antebellum period, those who criticized
the treatment of blacks were free to voice
those objections in the north, but risked
official retaliation or punishment if they
made such remarks in southern states. J.
tenBroek, Equal Under Law ( 1969). The
decision in this case recreates precisely
the type of problem with which Congressmen
Bingham and other members of the thirty-
ninth Congress were concerned. Had
petitioner chosen to denounce respondent
in another state, he would have faced no
legal difficulties. Petitioner would have
enjoyed absolute constitutional protection
if he had called respondent a Nazi, a

60
facist or a Stalinist in New York, a

60 New Testament Missionary Fellowship v. 
Dutton, 9 Media L. Rep. 11747 1175 (N. Y7 
Sup. Ct. 1982) ("facist"); Holy Spirit 
Ass'nv. Sequoia Elsevier Publishing Co., 
426 A. D. 2d 759, 760 (1980) ("Nazi-style



44

Marxist in the District of Columbia, a
62

hood or a thug in Michigan, the scum of
63

the earth in New Hampshire, or a sadist,
a nut, a barbarian, a lunkhead or a

64
meatball in Massachusetts. But when 
petitioner chose instead to assert in 
Virginia that respondent had taken a 
single action that was racially motivated, 
petitioner became liable for an enormous 
punitive award exacted under color of 
state law. The injustice of that result 
is exacerbated by the fact that, in 1984,

61

anti-Semitism"); Brower v. New Republic 
Inc., 7 Media L. Rep. 1605 (N.Y. Sup. Ct. 
T W l  ) ("old Stalinist").

1 Oilman v. Evans, supra.
Lins v. Evening News, 9 Media L. Rep. 2380 
(Mich. Ct. App. f983) .
Pease v. Telegraph Publishing Co., 426 
A . 2(3 463 " ( i O T T 9 81 ) .
Fleming v. Benzaquin, 454 N.E.2d 95, 100 
(Mass. 198 37; Medeiros v. Northeast 
Publishing, 8 Med ia L. Rep. 2500 (Mass. 
Super. Ct. 1982).

64



45

the same year that the Supreme Court of 
Virginia refused even to consider peti­
tioner's contention that an allegation of 
"racism" is constitutionally protected, 
the Supreme Court of North Carolina held 
that the laws of that state did not permit 
a black man to sue for libel because he
had been publicly accused of "reverse 

65
racism."

The implications of the decision 
below are particularly grave because, in 
sustaining an award of punitive damages, 
the Virginia Supreme Court held that the 
existence of malice had been proved by the 
fact that petitioner made the statement in

Renwick v. News Observer Publishing Co.,
3 T 2.S.E.2d 4 0 5, 4 0T ~T n .C . 1984). The
newspaper editorial at issue also de­
nounced Renwick as an "extremist", and 
suggested that he had lied about the 
operations of the minority admissions 
program he had supervised at the Univer­
sity of North Carolina; neither of these 
assertions was held actionable.



46

question in the absence of any "objective" 
proof of racism. (App.102). As this 
Court itself has noted, such direct 
evidence of discrimination is only rarely 
present in discrimination cases. U .S. 
Postal Service v. Aikens, 460 U.S. 71, 76 
(1983). Thus under the decision in this 
case, almost any allegation of racism in 
Virginia will be deemed malicious as a 
matter of law, a holding that not only 
permits an award of punitive damages, but 
allows a successful libel action on behalf 
of a public official. In Virginia today 
any citizen or civil rights organization 
that criticizes a judge, legislator or 
other public figure as biased runs a 
serious risk of being mulct in damages by 
a hostile all-white jury.



47

11 * The Award of $233,333 Is So 
Excessive as- to violate the 
F i r s t  A iiend iien t' ~ ~~

Twelve years ago this Court warned 
that, because of the lack of any legal 
standards governing libel awards, juries 
"remain free to use their discretion 
selectively to punish expressions of 
unpopular views." Gertz v. Welch, 418 
U.S. at 350. In light of that danger, the 
majority in Gertz concluded that there 
were constitutional limitations on the 
amount of compensatory and punitive 
damages that might be awarded in a libel 
case. 418 U.S. at 349-50. Justice White 
urged that "immoderate verdicts" should be 
corrected under "the salutary New York 
Times policy of case-by-case 'independent 
examination of the whole record'". 418
U.S. at 397-98.



48

In the instant case the largest
officially reported libel verdict in
Virginia history has been imposed by a
jury upon a defendant who dared to voice a
view that for centuries has been of unique
unpopularity in that region. No one could
seriously suggest that this has occurred
by coincidence. For generations many
whites have reacted with anger, outrage
and even violence to blacks who complained
about racial injustices. The $233,333
judgment in this case, imposed for the
expression of just such a grievance, is
five times larger than any libel judgment
ever previously upheld by the Virginia

66
Supreme Court. The second highest such 
judgment, a verdict of $55,000 per 
plaintiff against a union for calling a

A list of all libel verdicts appealed to 
that court since 1 925 is set out in Table 
B, reproduced at the end of this peti­
tion .



- 49

strike breaker a "scab," was overturned 
by this Court. Letter Carriers v. Austin, 
418 U.S. 264 (1974).

The excessive and extraordinary 
nature of the verdict in this case is 
particularly apparent with regard to the 
award of punitive damages, including 
interest, The 1982 jury awarded punitive 
damages, including interest, of $491,000, 
and the remittitur in this case effec­
tively reduced the punitive award to 
$166,660. The largest punitive award ever 
previously upheld by the Virginia Supreme
Court, excepting the decision in Letter

68
Carriers, was only $999 . The $166,666
private fine imposed in this case for the

67

National Association of Letter Carriers v . 
Auitin ,213 Va. 377 (1972). ~
Wright v. Corfield, 146 Va. 637 (1926). 
The punitive award in Letter Carriers was 
$45,000 for each of the three plaintiffs 
there.



50

express purpose of punishing petitioner is
far higher than the fines authorized by
the Virginia Criminal Code for even
serious criminal conduct. Under Virginia
law, the maximum fine for assault, grand
larceny or voluntary manslaughter is 

69
$1 , 000; but state law places no limit 
whatever on the monetary sanction that can 
be imposed for injuring a man's "honor." 
In Virginia as elsewhere convicted felons 
and misdemeanants are regularly sentenced 
only to fines far smaller than the 
$166,666 imposed on petitioner.

The majority in Gertz expressed the 
hope that the danger of excessive compen­
satory awards would be reduced because 
jury discretion would "be limited by 
appropriate instructions". 418 U.S. at 
350. But in the instant case the instruc-

F5 Code Va. §§ 18.2-10, 18.2-35, 18.2-51, 
18.2-59, 18.2-93.



51

tions on damages merely listed the types 
of psychic injuries that could be re­
dressed, without any guidance regarding 
how compensation was to be measured. (Tr. 
576 ). The result was predictably arbi­
trary. The jury which heard this case in 
1978 concluded that the injuries sustained 
by respondent had a value of $10,000; four 
years later the second jury, on virtually 
the same record, fixed the amount of those 
very same injuries at $100,000. The 
ultimate damage award of $66,666 for being 
called a racist is several times larger 
than the average libel verdict sustained 
by the Virginia Supreme Court in cases in
which the plaintiff was falsely accused of

70
commiting a criminal offense.

70 See Table B, infra.



52

Just as it was important in past 
cases to delineate whether an award of as 
little as $5,000 was based on a constitu­
tionally sound finding of liability, St. 
Amant v. Thompson, 390 U.S. 727, 729 
(1968), so too is it critical to determine 
whether even such a finding can support a 
$266,666 judgment in favor of a libel 
plaintiff who admittedly suffered not one 
dollar of financial injury. Any damage 
award in a libel case carries with it a 
risk of chilling freedom of speech, but 
judicial approval of crushing awards such 
as that in this case is likely to have a 
far greater deterrent effect. Certiorari 
should be granted to overturn the verdict 
below, and to establish for the fixing and 
review of future verdicts constitutional 
standards that will prevent the sort of 
abuse that occurred here.



53

III. Certiorari Should Be Granted to 
PeTclde wFetKer Biitson~~v7~ Ken­
tucky AppIl¥i~To~~cTvTl.LitTga^
tion Regardlng^RacTa 1. Issues.

At the outset of the 1982 trial in 
this case, after counsel for respondent 
used his peremptory challenges to remove 
all blacks from the jury, petitioner 
unsuccessfully moved to quash the result­
ing jury panel on the grounds that it was 
constituted in an unconstitutional manner. 
(App. 147-51). When petitioner urged the 
Virginia Supreme Court to review that 
issue, counsel for respondent argued that
his action was expressly sanctioned by

71
Swain v. Alabama, 380 U.S. 202 ( 1965). On

7 1 .  . .Brief m  Opposition to Petition to Appeal, 
No. 83-1446, pp. 39-41. ("[T]he Supreme
Court of the United States has categori­
cally rejected this argument. Swain v. 
Alabama . . . .  Fleming . . . submits 
that the trial judge should examine 'the 
core of the case' in order to decide 
whether it is necessary to assure that a 
black . . .  be included . . . .  Such an 
exception to the Swain ruling would place



54

January 7, 1984, the Virginia Supreme
Court declined to consider this issue, and 
on March 7, 1986, that court finally
denied rehearing in this case. Less than 
two months later this Court overruled 
Swain. Batson v. Kentucky, No. 84-6263 
(April 30, 1986).

The question presented by this case 
is whether Batson should be applied to 
civil litigation involving sensitive 
racial issues. Batson itself did not 
squarely resolve that issue. See 90 
L.Ed.2d at 82 n. 12. Although respon­
dent's attorney was not himself a state 
employee, the actual order that all black 
veniremen stand aside was issued in this 
case by a state judge acting under color

exception to the Swain ruling would place 
entirely too much discretion in the trial 
j udge").



55

of law at the behest of respondent. See
Shelley v. Kramer, 334 U.S. 1 ( 1948).
Several lower court cases addressing this 
issue have concluded that the constitu­
tional restrictions on a prosecutor's use 
of peremptory challenges would apply in at
least some cases to the use of such

72
challenges by a private litigant.

The constitutional restrictions 
against racial discrimination in jury 
selection apply to private civil litiga-

Booker v, Jabe, 775 F. 2d 762,771-72 (6th 
Cir. 1985) (criminal defense counsel 
subject to constitutional limitations); 
McCray v. Abrams, 581 F. Supp. 493, 499 
(E . D. N. Y. T§84l (rules regarding use of 
peremptories in civil case substantially 
the same as in criminal case); Miami v.
Cornett, __  So. 2d _ (No. 81 - 85 ,““11 a. D.
Ct. App.) (slip opinion Jan. 29, 1985) (in 
racially sensitive civil case "[tjhe 
misuse of the peremptory challenges to 
eliminate identifiable groups contributes 
to an undermining of the integrity of the 
justice system"; it is "the responsibility 
of the court to minimize that potential 
for abuse by imposing some reasonable 
limitations on the exercise of the 
challenge").



56

tion as well as to criminal cases. Thiel 
v. Southern Pacific Co., 328 U.S. 217 
(1946). Much of the reasoning of Batson is 
entirely applicable to the instant case. 
Batson warned that "[b]y compromising the 
representative quality of the jury,
discriminatory selection procedures make 
'juries ready weapons . . .  to oppress 
those . . . individuals who . . . are
numbered among unpopular . . . minori­
ties'". JEd at 81 n. 8. These dangers 
were relatively mild in Batson itself, 
where the only racial element in the case 
stemmed from the race of the defendant, In 
the instant case that danger is far 
greater, not only because the opposing 
litigants are of different races, but 
because the subject matter of the liti­
gation is one of extraordinary racial 
sensitivity.



57 -

A decision sustaining petitioner's 
objections to the jury selection procedure 
in this case need not extend Batson to 
every civil case. We ask only that the 
Court hold, as it did in Turner v. Murray, 
90 L .Ed.2d 2 7 (1985), that the specific 
racial circumstances of this case require 
particular procedural safeguards. In this 
case, as in Hamm v. South Carolina, 409 
U.S. 524 (1973), "racial issues 'were
inextricably bound up with the conduct of 
the trial.'" Turner v . Murray, 90 L.Ed.2d 
at 4 5 (Powell, J ., dissenting) . in
assessing the accuracy and reasonableness 
of petitioner's allegation of racism, 
white jurors would necessarily bring to 
their deliberations experiences and 
sensitivities totally different than would 
blacks. Although Virg inia statutes
provided some standards to guide the 
sentencing jury in Turner, the jury in



58

this case had virtually no such guidance 
in fixing the amount of compensatory 
damages, and none whatsoever in determin­
ing the amount of punitive damages. Thus 
here, as in Turner, "the range of discre­
tion entrusted to a jury . . . [provides] 
a unique opportunity for racial prejudice 
to operate but remain undetected." 90 
L.Ed.2d at 35. The Virginia Supreme Court 
in this case candidly acknowledged that 
the excessiveness of the 1982 verdict"on 
its face indicates prejudice or partiali­
ty" . (App. 105) .

IV. The Decision Below Is Inconsistent 
With “Bose Corp. v*I Consumers 
Oh ion, '"ftp L .Ed .2d'~5'62'"Tl984)- 7

In Bose Corp. v. Consumers Union, 80 
L . Ed.2 d 502 ( 1984), this Court held that 
"in cases raising First Amendment is­
sues . . .  an appellate court has an 
obligation to 'make an independent



59

examination of the whole record' in order
to make sure 'that the judgment does not
constitute a forbidden intrusion on the
field of free expression.' " 80 L . Ed. 2d
at 515. In the instant case there has
never been any appellate review at all of
many of the constitutional issues. Among
the questions which the Virginia Supreme
Court simply refused to decide in 1984 and
1986 were whether petitioner's statement
was an absolutely privileged expression of
opinion under the First Amendment, whether
respondent was a public figure, whether
the 1982 jury was constituted in a manner
that violated the Fifth and Fourteenth
Amendments, and whether the $233,333
judgment was unconstituionally exces-

73
sive.

73 App. 50-53, 127-28, 263-72, 277-78.



60 -

We believe that Bose requires a state 
court with appellate jurisdiction over a 
libel case to exercise that jurisdiction 
and squarely resolve the federal constitu­
tional questions raised. At the least, 
Bose requires this Court to scrutinize 
with particular care petitions in libel 
cases seeking review of First and Four­
teenth Amendment issues which the state 
appellate courts simply refused to 
consider or resolve.

The record in this case falls far 
short of Bose1 s insistence that a libel 
plaintiff establish by "clear and con­
vincing evidence" that he has met the 
substantive constitutional requirements of 
New York Times v. Sullivan and its 
progeny. 80 L.Ed.2d at 523, 525. Respon­
dent was understandably regarded both by 
local officials and by his own attorney as 
one of the principal leaders of the



61

opposition to the disputed development 
that was the subject of a raging public 
debate in Albemarle County. Respondent 
spoke at some public meetings, engaged an 
attorney to speak at others, met with both 
county officials and the developers, and 
helped to instigate the litigation that 
ultimately led to the project's demise. 
Having chosen to play a central role in a 
controversy as heated and important as any 
political campaign or labor dispute, 
respondent was surely a limited purpose 
public figure who had "thrust [him]self to 
the forefront of [a] public controversy in 
order to influence the resolution of the 
issues involved in it". Time, Inc, v. 
Firestone, 424 U.S. 448, 453 (1976).

The record in this case is clearly 
insufficient to establish that peti­
tioner's statement was made with malice. 
Not even the Virginia Supreme Court



62

suggested that petitioner knew or could 
have known that his statement was false; 
only respondent will ever know with 
certainty what motive prompted him to 
campaign against the proposed development. 
The Virginia Supreme Court did not find 
that recklessness had been shown by "clear 
and convincing evidence", but utilized a 
less stringent standard, holding only that 
the evidence was "substantial" and 
"credible." (App.101). The state appel­
late court reasoned that the record showed 
a reckless disregard for truth since 
petitioner lacked "objective" evidence 
that respondent was racially motivated; as 
we explained earlier, that analysis was 
erroneous as a matter of law. This Court 
recognized in New York Times v. Sullivan, 
that "[e]rrors of fact, particularly in 
regard to a man's mental states and 
processes, are inevitable." 376 U.S. at



63

272. If petitioner misconstrued respon­
dent's intentions, his error was precisely 
" the sort of inaccuracy that is common­
place in the forum of robust debate to 
which the New York Times rule applies." 
Bose Corp. v. Consumers Union, 80 L.Ed.2d 
at 525.

CONCLUSION
For the above reasons a writ of

certiorari should be issued to review the
judgments and opinions of the Virginia 

74
Supreme Court.

Respectfully submitted,

D. ALAN RUDLIN 
W.JEFFREY EDWARDS 

Hunton & Williams 
P.O. Box 1535 
Richmond, VA 23212 
(804) 788-8200

74 See, n. 1, supra.



64

J. BENJAMIN DICK 
Suite 2
421 Park Street 
Charlottsvilie,
VA 22901

SAMUEL W. TUCKER
Hill, Tucker & Marsh 
P.O. Box 27363 
Richmond, VA 23261

GERALD E. POINDEXTER
Surry Courthouse Square 
Surry, VA

J .LeVONNE CHAMBERS 
ERIC SCHNAPPER *

NAACP Legal Defense 
& Educational Fund,
Inc.
16th Floor
New York, New York 10013 

Attorneys for Petitioner 
*Counsel of Record



1a

TABLE A
Lower Court Opinions Regarding 

Constitutionally Protected 
Expressions of Opinion 

1974 - 1988

I. Federal Courts of Appeals
(1) District of Columbia Circuit

Oilman v . Evans, 713 F.2d 
838 (D.C. Cir. 1983) 
(panel opinion), 750 
F.2d 970 (D.C. Cir.
1984)(en banc)

McBride v. Merrell Dow &
Pharmaceuticals, Inc., 
717 F.2d 1460, 1464, 
n.7 (D.D. Cir. 1983)

(2) First Circuit
Bose Corp. v . Consumers

Union, Inc., 692 F.2d 
189, 192-94 (1st Cir. 
1982)

(3) Second Circuit
Mr. Chow of New York v . Ste. 

Jour Azur, S.A., 759 
F.2d 219, 223-27 (2d 
Cir. 1985)



2a

Davis v. Ross, 754 F.2d 80, 
85-88 (2d Cir. 1985) 

Cianci v. New Times Pub­
lishing Co., 639 F.2d 
54, 61-64 (2d Cir. 1980) 

Edwards v. National Audubon 
Society, Inc., 556 F.2d 
113, 121 (2d Cir. 1977) 

Hotchner v. Castillo-Puche,
551 F.2d 910, 912-13 (2d 
Cir. 1 977 )

Buckley v. Littell, 539 F.2d 
882 (2d Cir. 1976)

(4) Third Circuit
Redco Corp. v. CBS, 11 Media 

L. Rep. 1861 (3d Cir. 
1985)

Avins v. White, 627 F.2d 637, 
642 (3d Cir. 1980)

Pierce v. Capital Cities
Communications, 576 F.2d 
495, 503 (3d Cir. 1978)

(5) Fourth Circuit
National Foundation for Cancer 

Research, Inc. v. Council 
of Better Business 
Bureau, Inc., 705 F.2d 
98, 100-01 (4th Cir.
1983)



- 3a -

(6) Fifth Circuit
Wyatt v. Kaplan, 686 F.2d 276, 

278, 282(5th Cir. 1983) 
Church of Scientology v.

Cazares, 638 F.2d 1272, 
1286-89 (5th Cir. 1981)

Schultz v . Newsweek, 668 F.2d 
911, 913-18 (6th Cir. 
1982)

Street v. NBC, 645 F.2d 1227, 
1233 (6th Cir. 1981)

Orr v. The Argus Press Co., 
586 F.2d 1108, 1114-15 
(6th Cir. 1978)

Action Repair v . ABC, 12 Media 
L. Rep. 1398 (7th Cir.
1 985 )

Spelson v . CBS, 11 Media L. 
Rep. 1900 (7th Cir.
1 985)

(9) Eighth Circuit
Janklow v . Newsweek, Inc.,

759 F.2d 644 (8th Cir. 
1985) (panel opinion),
12 Media L. Rep. 1961 
(8th Cir. 1986)(en banc)

(7) Sixth Circuit

(8 ) Seventh Circuit



4a

Lauderback v. American
Broadcasting Co. Inc., 
741 F.2d 193 (8th Cir. 
1984 )

(10) Ninth Circuit
Kaplan v. Newsweek, 12 Media 

L. Rep. 1277 (9th Cir. 
1985)

Lewis v . Time, Inc., 710 F.2d 
549, 552-54 (9th Cir.
1983)

Information Control Corp. v . 
Genesis One Computer 
Corp., 611 F.2d 781 (9th 
Cir. 1980)

(11) Tenth Citcuit
Rinsley v. Brandt, 700 F.2d 

1304, 1307 (10th Cir. 
1983)

Dixon v. Newsweek, Inc., 562
F.2d 626, 631 (10th Cir. 
1 977)

(12) Eleventh Circuit
Keller v. Miami Herald Pub­

lishing Co., 778 F.2d 
711, 715-17 (11th Cir. 
1985)

Hallmark Builders v. Gaylord 
Broadcasting, 10 Media 
L. Rep. 1981 (11th Cir. 
1 984)



5a

II. Federal District Court Opinions
Trump v. Chicago Tribune Co., 

12 Media L. Rep. 1060 
(S.D.N.Y. 1985)

Korkala v. W.W. Norton, 12 
Media L. Rep. 1271 
(S.D.N.Y. 1985)

Kelly v. Schmidberger, 12
Media L. Rep. 1297 (S.D 
N.Y. 1985)

Koch v. Goldway, 607 F. Supp.
1178 (S.D.N.Y. 1984) 

Herbert v.Lando, 596 F. Supp.
1178 (S.D.N.Y. 1984) 

Westmoreland v, CBS, 596 F. 
Supp. 170 (S.D.N.Y.
1984 )

Conniff v. Dodd Mead, 593
F. Supp. 266 (S.D.N.Y.
1 984)

Dowd v. Calabrese, 589
F. Supp. 1206 (D.D.C.
1 984)

Smith v. McMullen, 589
F. Supp. 642 (S.D. Tex. 
1 984)

Held v. Pokorny, 583
F. Supp. 1038 (S.D.N.Y.
1984)

Spelson v. CBS, 581 F. Supp.
1195 (N.D. 111. 1984) 

Auvil v.Times Journal Company 
10 Media L. Rep. 2302 
(E.D. Va. 1984)

Redco Corp. v. CBS, 10 Media 
L. Rep. 1536 (M.D. Pa.
1984)



6a

Ricci v. Venture Magazine, 574 
F.Supp. 1563 (D. Mass. 
1983)

Grass v. News Group Publica­
tions, 570 F.Supp. 178 
(S.D.N.Y. 1983)

Cinker, Inc. v. Northern Gas 
Co., 578 F.Supp. 112, 
114-15 (D. Wyo. 1983) 

National Rifle Association v.
Dayton Newspapers, Inc., 
555 F.Supp. 1299,
1304-05 (S.D. Ohio 1983) 

Adler v. American Standard
Corp., 538 F.Supp. 572, 
576 (D. Md. 1982)

Wynberg v. National Enquirer,
8 Media L. Rep. 2398 
(C.D. Cal. 1982)

Cibenko v. Worth Publishers, 
510 F.Supp. 761, 765 
(D.N.J. 1981)

McManus v. Doubleday, 513
F.Supp. 1383 (S.D.N.Y. 
1981 )

Loeb v. New Times Communica­
tions Corp., 497 F.Supp. 
85 (S.D.N.Y. 1980)

Loeb v. Globe Newspaper Co., 
489 F.Supp. 481 (D.
Mass. 1980)

Yerkie v. Post Newsweek
Stations, Michigan,
Inc., 470 F.Supp. 91,
94 (D.Md. 1979)

Steaks Unlimited, Inc. v.
Deaner, 468 F.Supp. 779 
(W.D. Pa. 1979)

Stripling v. Literary Guild of 
America, 5 Media L. Rep. 
1958 (W.D. Tex. 1979)



7a

Church of Scientology v.
Siegelman, 5 Media L. 
Rep. 2021 (S.D.N.Y.
1979)

Hoover v. Peerless Publica­
tions, Inc., 461 F.Supp. 
1206, 1209-10 (E.D. Pa.
1 978)

Hillman v. Metromedia, Inc., 
452 F.Supp. 727 (D. Md. 
1978 )

Guitar v. Westinghouse
Electric Corp., 396 
F.Supp. 1042, 1048 
(S.D.N.Y. 1975)

III. State Court Decisions
(1) Arizona

MacConnell v. Mitten, 131
Ariz. 22, 638 P.2d 689, 
692 (1981)

Phoenix Newspapers, Inc. v. 
Church, 24 Ariz. App. 
287, 537 P.2d 1345 
(1975)

(2) California
Underwood v. CBS, Inc., 150 

Cal. App.2d 460, 198 
Cal. Rpt. 48, 52, 53 
(Cal. App. 1984)

Walker v. Chronicle Publishing 
Co., 10 Media L. Rep. 
1282 (Cal. App. 1984)



- 8a

B & B Group v. Los Angeles 
Herald Examiner, 10 
Media L. Rep, 1892 (Cal. 
App. 1984)

Belli v. Barryhill, 11 Media 
L. Rep. 1221 (Cal. App.
1 984 )

Okun v. Superior Court, 29 
Cal.3d 442, 175 Cal.
Rptr. 157 (1981) 

Rollenhagen v. Orange, 116 
Cal. App.3d 414 (Cal. 
App. 1980)

Institute of Athletic Motiva­
tion v. University of 
Illinois, 114 Cal.
App.3d 1, 170 Cal. Rptr. 
411 (Cal. App. 1980) 

Desert Sun Publishing Co. v.
Superior Court, 97 Cal. 
App.3d 49, 158 Cal. 
Rptr. 519 (Cal. App. 
1979)

Blackhawk Corp. v. Ewing,
94 Cal. App.3d 640, 156 
Cal. Rptr. 581 (Cal.
App. 1979)

Good Government Group of
Seal Beach v. Hogard, 22 
Cal.3d 372, 586 P.2d 
572, 152 Cal. Rptr. 258
(1978)

Sierra Breeze v. Superior
Court, 86 Cal. App.3d 
102 (Cal. App. 1978) 

Gregory v. McDonnell Douglas 
Corp., 17 Cal.3d 596,
131 Cal. Rptr. 641, 552 
P . 2d 425 ( 1976)



9a

Scott v. McDonnell Douglas 
Corp.f 37 Cal. App.3d 
277, 112 Cal. Rptr. 609 
(Cal. App. 1974)

(3) Colorado
Russell v. McMillen, 685 P .2d 

255 (Colo. Ct. App.
1984 )

Lane v. Arkansas Valley Pub.
Co., 675 P.2d 747, 750, 
751 (Colo. App. 1983) 

Dorr v. C.B. Johnson, Inc.,
660 P.2d 517, 520 (Colo. 
App. 1983)

Burns v. McGraw-Hill Broad­
casting Co., 659 P.2d 
1351, 1357 (Colo. 1983) 

Burns v . Denver Post, Inc.,
606 P .2d 1310, 1311, 43 
Colo. App. 325 (Colo. 
App. 1979)

Bucher v. Roberts, 198 Colo.
1, 3, 595 P.2d 239, 241
(1979)

(4) Connecticut
Strada v . Connecticut News­

papers , 193 Conn. 313, 
477 A.2d 1005, 1011 
n .12 (1984)

Goodrich v . Waterbury
Republican-American, 188 
Conn. 107, 448 A.2d 
1317, 1231-24 (1982)



10a

(5) Delaware
Slawik v. News-Journal Co.,

428 A.2d 15, 16-17 (Del. 
1981 )

(6) Florida
Hay v. Independent Newspapers,

450 So.2d 293 (Fla.
Dist. Ct. App. 1984) 

Sepmeier v. Tallahassee Demo­
crat, 10 Media L. Rep. 1285 
(Fla. Cir. Ct. App. 1984) 

Victor v. News and Sun
Sentinel Co., 10 Media 
L. Rep. 2073 (Fla. Cir.
Ct. 1984)

Smith v. Taylor County Pub.
Co. Inc., 443 So.2d 
1042, 1047 (Fla. App.
1983)

Eastern Airlines, Inc. v.
Gellert, 438 So.2d 923,
927 (Fla. App. 1983)

Shiver v.Apalachee Publishing 
Co., 425 So.2d 1173 
(Fla. Dist. Ct. App.
1 983)

De Moya v. Walsh, 9 Media L.
Rep. 2527 (Fla. Dist.
Ct. App. 1983)

Rudesyle v. Coll, 8 Media L.
Rep. 1751 (Fla. Cir. Ct. 
1982)

From v. Tallahassee Democrat, 
Inc., 400 So.2d 52 (Fla. 
Dist. Ct. App. 1981)



11a

Wade v. Stocks, 7 Media L.
Rep. 2200 (Fla. Cir. Ct. 
1 981 )

Lampkin-Asam v . Miami Daily 
News, 6 Media L. Rep. 
2086 (Fla. Cir. Ct.
1980 )

Coleman v. Collins, 384 So.2d 
229, 231 (Fla. Dist. Ct. 
App. 1980)

Ihl v. Florida Publishing 
Co., 5 Media L. Rep.
2005 (Fla. Cir. Ct.
1979)

Craig v. Moore, 4 Media L.
Rep. 1402 (Fla. Cir. Ct. 
1978)

Palm Beach Newspapers v.
Early, 334 So.2d 50 
(Fla. Dist. Ct. App.
1 976)

(7) Georg ia
Whitfield v. Southern News­

papers, 10 Media L. Rep. 
1771, 1773-74 (Ga. Super. 
Ct. 1984)

Brooks v. Stone, 9 Media L.
Rep. 1823 (Ga. Cty. Ct. 
1983)

Walker v. Southeastern News­
papers, 9 Media L. Rep. 
1516 (Ga. Cty. Ct.
1982)



Illinois
Costello v. Capital Cities

Media, 9 Media L. Rep. 
1434 (111. Ct. App. 
1982)

Catalano v. Pechous, 60 111.
App.3d 797, 387 N.E.2d 
714, 723-24 (1979)

Indiana
Wefler v. Indianapolis News­

papers, 7 Media L. Rep. 
1876 (Ind. Cir. Ct.
1 981 )

Kentucky
Haynes v. McConnell, 642

S .W.2d 902, 904 (Ky. 
1 982)

Louisiana
Foote v. Sarafyan, 432 So.2d 

877, 879, 881 (La. App. 
1983)

McHale v. Lake Charles Ameri­
can Press, 6 Media L. 
Rep. 2478, 2486-87 (La. 
App. 1980)

Economy Carpets Manufacturers 
v. Better Business 
Bureau, 361 So.2d 234 
(La. App. 1978)

Mashburn v. Collin, 355 So.2d 
879, 885 (La. 1977)



13a

(12) Maine
Caron v. Bangor Publishing

Co., 470 A.2d 782, 784 
(Me. 1984)

13) Maryland
Hearst Corp. v. Hughes, 297 

Md. 112, 466 A.2d 486, 
496 (1983)

Kapiloff v. Dunn, 27 Md. App.
514, 343 A.2d 251 (175)

(14) Massachusetts
Fleming v. Benzaquin, 390

Mass. 175, 454 N.E.2d 
95, 100-04 (1983) 

Pristker v. Brudnoy, 389
Mass. 776, 452 N.E.2d 
227, 228-29 (1983)

Cole v. Westinghouse Broad­
casting Co., 386 Mass. 
303, 435 N .E.2d 1021
(1982)

Myers v. Boston Magazine
Co., 380 Mass. 336, 403 
N .E.2d 376, 380-81
(1980)

National Association of
Government Employees v. 
Central Broadcasting 
Corp., 396 N.E.2d 996 
(1979)



14a

15) M i c h i g a n

Lins v. Evening News, 9 Media
L. Rep. 2380 (Mich. Ct. App. 
1983)

Searer v. Wometco West Michi­
gan TV, 7 Media L. Rep.
1639 (Mich. Cir. Ct.
1981 )

(16) Mississippi
Ferguson v. Watkins, 448 So.

2d 271, 276 (Miss. 1984)

(17) Missouri
Henry v. Hallirburton, 690 

S.W.2d 775 (Mo. 1985) 
Buller v. Pulitzer Publishing, 

684 S.W.2d 472 (Mo. Ct. 
App. 1984

Iverson v. Crow, 639 S.W.2d 
118, 119 (Mo. 1982)

Anton v. St.Louis Suburban
Newspapers, 598 S.W.2d 
493, 499 (Mo. Ct. App.
1 980)

Nevada
Nevada Independent Broad­

casting v. Allen, 664 
P .2d 337, 342 (Nev.
1 983)

( 18)



15a

Nash v. Keene Publishing Corp., 
12 Media L. Rep. 1025 
(N.H. 1985)

Pease v. Telegraph Publishing 
Co., 426 A.2d 463 (N.H.
1 981 )

(19) New Hampshire

(20) New Jersey
Kotlikoff v. The Community 

News, 89 N.J. 62, 69, 
444 A.2d 1086, 1091 
(1982)

(21) New Mexico
Marchiondo v. Brown, 98

N.M. 394, 649 P.2d 462 
(1982)

Kutz v. Independent Publish­
ing Co., 97 N.M. 243, 
638 P.2d 1088 (1981)

(22) New York
Chalpin v. Amordian Press,

12 Media L. Rep. 1422 
(N.Y. Sup. Ct. 1985)

Katz v. Newsday, 11 Media
L. Rep. 2456 (N.Y. Sup. 
Ct. 1985)

Lucille Farm Products v.
Dow Jones, 11 Media L. 
Rep. 2240 (N.Y. Sup. Ct.
1985)



16a

New Deal Restaurant v.WPIX,
11 Media L. Rep. 1965 
(N.Y. Sup. Ct. 1985) 

Heilman v. McCarthy, 10
Media L. Rep. 1789 (N.Y. 
Sup. Ct. 1985)

Silsdorf v.Levine, 85 A.D.
297, 447 N.Y.S.2d 936, 
941 (1981)

Ritter v. Matthes, 9 Media
L. Rep. 1744 (N.Y. Sup. 
Ct. 1983)

Golden v. Elmira Star Gazette, 
9 Media L. Rep. 1183 
(N.Y. Sup. Ct. 1983)

New Testament Missionary
Fellowship v. Dutton, 9 
Media L. Rep. 1174 (N.Y. 
Sup. Ct. 1982)

Hentel v Knopf, 8 Media L.
Rep. 1908 (N.Y. Sup. Ct. 
1982)

DeLuca v. New York News, 109 
Mi sc.2d 391 , 438 
N.Y.S.2d 199 (N.Y. Sup. 
Ct. 1981)

Gewurz v. Bernstein, 107 
Misc.2d 857, 436 
N.Y.S.2d 142 (N.Y. Sup. 
Ct. 1981)

Brower v. New Republic, Inc.,
7 Media L. Rep. 1605 
(N.Y. Sup. Ct. 1981 ) 

Brady v. Ottaway Newspapers, 
445 N.Y.S.2d 786 (App. 
Div. 1981)

Labor Party v. Anti-Defamation 
League, 6 Media L. Rep. 
2209 (N.Y. Sup. Ct.
1 980 )



17a

Ithaca College v. Yale Daily 
News, 433 N.Y.S.2d 530 
(N.Y. Sup. Ct. 1980) 

Wehringer v. Newman, 60 S.D. 
2d 385, 400 N.Y . S . 2d 
533, 536-37 (1978)

Rank v. New York Times Co.,
4 Media L. Rep. 1556 
(N.Y. Sup. Ct. 1978) 

Rinaldi v. Holt, Rinehart,
42 N.Y.2d 369, 380-81 
(1977)

(23) North Carolina
Renwick v. News and Observer 

Pub. Co., 63 N.C. App. 
200, 304 S .E.2d 593, 
602, 612 (Ct. App. 
1983)

Brown v. Boney, 41 N.C.
App. 636, 648, 255 
S.E.2d 784, 791 (Ct. 
App. 1979)

(24) Ohio
Milkovich v. News Herald, 473 

N.E.2d 1191, 1196 (Ohio 
1 984)

Plough v. Schneider, 8 Media 
L. Rep. 1620 (Ohio Ct. 
App. 1982)

Greer v. Columbus Monthly, 8
Media L. Rep. 2129 (Ohio 
Ct. App. 1982)



18a

Ferguson v . Dayton News­
papers, 7 Media L. Rep. 
1396, 1398 (Ohio Com. 
Pleas 1981)

Dupler v. Mansfield Journal,
5 Media L. Rep. 2269 
(Ohio C.t App. 1979)

(25) Oklahoma
McCullough v. Cities Service

Co., 676 P.2d 833 (Okla. 
1 984 )

Miskovsky v. Oklahoma Pub­
lishing, 654 P.2d 587 
(Okla. 1982)

(26) Oregon
Bock v. Zittenfield, 66 Or. 

App. 97, 672 P .2d 237
(1983)

Haas v. Painter, 9 Media L.
Rep. 1665 (Ore. Ct. App. 
1 983)

Cushman v. L. B. Day, 43 Or. 
App. 123, 602 P.2d 327 
(1979)

Walsh v. Consolidated Freight- 
ways, 278 Or. 347, 563 
P.2d 1205 (1977)

King v. Menolascino, 276 Or.
501, 555 P.2d 442 (1976)



19a

(27) Pennsylvania
Braig v. Field Communications 

310 P. Super. 569, 456 
A.2d 1366, 1372-73 (Pa. 
Super. 1983)

Beckman v. Dunn, 276 Pa.
Super. 527, 419 A.2d 
583, 587 (Pa. Super. 
1980)

(28) Rhode Island
Hawkins v. Oden, 459 A.2d

481, 484 (R. I. 1983)

(29) Tennessee
Leader v. WSM, Inc., 10 Media 

L. Rep. 1343 (Tenn. Cir 
Ct. 1984)

Windsor v. Tennesseean, 654 
S.W.2d 680, 685 (Tenn. 
App. 1983)

Stones River Motors, Inc. v. 
Mid-South Publishing 
Co., 651 S .W.2d 713, 
720-23 (Tenn. App.
1983)

(30) Texas
A.H. Belo Corp. v. Rayzor,

644 S.W.2d 71, 80 (Tex. 
App. 1982)

First State Bank v. Ake, 606 
S.W.2d 696 (Tex. Civ. 
App. 1980)



20a

(31) Virg inia
Chaves v. Johnson, 230 Va.

__ 2 V.L.R. 216 ( 1985)
Motsinger v. Kelley, 11 Media 

L. Rep. 2459 (Va. Cir. 
Ct. 1985)

(32) Washington
Benjamin v. Cowles Publishing, 

10 Media L. Rep. 1970 
(Wash. Ct. App. 1984) 

Senear v. Daily Journal
American, 8 Media L.
Rep. 2489 (Wash.
Super. Ct. 1982)

(33) West Virginia
Miller v. Charleston Gazette,

9 Media L. Rep. 2540 (W. 
Va. Cir. Ct. 1983) 

Havalunch, Inc. v. Mazza, 294 
S.E.2d 70, 75 (W. Va. 
1982)

Wisconsin
Fields Foundation, Ltd. v.

Christensen, 103 Wis.2d 
465, 309 N.W.2d 125 
(1981)

( 3 4 )



21a -

Converters Equip. Corp. v.
Condes Corp., 80 Wis.2d 
257, 262, 258 N.W.2d 
712, 715 (1977)



22a -

TABLE B
Virginia Libel Appeals 

1925 - 1986

This table summarizes all libel and 
insulting words cases decided by the 
Virginia Supreme Court in reported 
decisions between 1925 and 1 986 . Set 
forth after each case are the substance of 
the alleged libel, the amount of the jury 
verdict, and the appellate disposition.
The Gazette, Inc, v. Harris, 325 S.E.2d 

713 (Va. 19851 fpTaTntTffs prosecuted 
for sexual battery; compensatory 
damages for three plaintiffs of 
$10,000, $10,000, and $30,000; no 
punitive damages; affirmed)

Charlottesville Newspapers, Inc. v.
Mathews, 32 5 S.E.2d 71 3~TvaT'~T98 5 ) 
(pregnant plaintiff unmarried; $25,000 
compensatory damages; no punitive 
damages; affirmed)

Port Packet Corp. v. Lewis, 325 S.E.2d 
TTTTvaT 1985) (child abuse; $50,000 
compensatory damages and $100,000 
punitive damages; actual damages 
affirmed, punitive damages reversed)



23a

Kamiar Corp. v. Haley, 224 Va. 699
(l'£'63 ) ( theft; $10,000 compensatory 
damages on libel and other tort 
claims; tort verdict not challenged 
on appeal)

Preston v. Land, 220 Va. 118 (1979)
(Crude conduct; compensatory damages 
of $2,500 and $5,000 for two plain­
tiffs; reversed)

Newspaper Publishing Corp. v. Burke
216 Va. 800 (1976)(improper conduct 
by plaintiff physician; $10,000 
punitive damages; no compensatory 
damages; reversed)

Tweedy v. J.C. Penny Co., 216 Va. 596 
( 1 976) ( thefit; $i, 500 compensatory 
damages; affirmed)

National Association of Letter Carriers 
v . Austin; 213 Va 7 377 ( 1972) ~
(plaintiffs called "scabs"; $10,000 
compensatory and $45,000 punitive 
damages for each plaintiff; affirmed)

Kroger Co. v. Young, 210 Va. 564 (1976) 
(theft; $25,000 compensatory damages; 
reversed)

Zayre, Inc.v. Gowdy, 207 Va. 47 (1966)
(shoplifting; $750 compensatory 
damages on insulting words and false 
imprisonment claim; affirmed)

Haycox v . Dunn, 200 Va. 212 (1958)
(deliberate lie; $65,000 compensatory 
damages; reversed)



24a

Crawford Co. v. Graves, 199 Va.
(1957) (statement denigrating skills 
of plaintiff doctor; $300 compensatory 
damages; affirmed)

Alexandria Gazette Corp v. West, 198
Va. 154 (1956)(improper conduct by
attorney; $2,500 compensatory damages; 
reversed)

Luhring v. Carter, 193 Va. 529 (1952)
(criminal conduct; $3,000 compensatory 
damages for insulting words and 
malicious prosecution; reversed)

Felvey v. Shaffer, 186 Va. 419 (1947)
“  [theft; $1 5,000 compensatory damages 

on insulting words and assault claims; 
affirmed)

Cohen v. Power, 183 Va. 258 (1944)
(theft; $1,000 compensatory damages; 
affirmed)

M. Rosenberg & Sons v. Craft, 182 Va.
512 (1 944T’fprairitT£f’allegedly in 
debt; $400 compensatory damages; 
reversed)

Fuller v. Edwards, 180 Va. 19 (1942)
~  [verbal abuse” of plaintiff; $900 

default judgment; affirmed)
Stubbs v. Cowden, 179 Va. 190 (1942)

P1 whore'1; ?F5,000 compensatory damages; 
reversed)

Guide Publishing Co.v . Futrell, 175 Va.
77 ( 1 940 )( plaintiff: married , mother of 
several children; $500 compensatory 
damages; reversed)



25a

News Leader Co. v. Kocen, 173 Va. 95 
( 1 939 ) ( crime; $2, 500 compensatory 
damages; reversed)

Federal Land Bank v . Birchfield, 173 Va.
" 2 0 T  ( 1939) l forgery; $1 /500“  
compensatory damages; reversed)

The Kroger Grocery and Banking Co. v.
Rosenbaum, 171 Va. 158 (1938)(theft; 
$10,000 compensatory damages; 
affirmed)

People Life Insurance Co. v . Talley,
166 Va. 46T~( 1$36)(writing anonymous 
letters; $600 compensatory damages; 
reversed)

Montgomery Ward & Co. v. Nance, 165 Va.
~  363 (1935)(inefficient job per­

formance; $5,000 compensatory damages 
affirmed)

James v. Haymes, 163 Va. 873 (1935)
(working slowly on state construction 
project; $5,000 compensatory damages; 
reversed)

Madison v. Kroger Grocery Co., 160 
Va. 303 (1$35)(shoplifting; $250 
compensatory damages; reversed)

Bowles v. May, 159 Va. 419 (1932)(illicit 
affair; $2,500 compensatory damages; 
reversed)

Weatherford v. Birchett, 158 Va. 741 
(1932 j(theft; $2,500 compensatory 
damages; affirmed)



- 26a

Snyder v. Fatherly, 1258 Va. 335
(1932)(planning to "steal something"; 
$3,000 compensatory damages; af­
firmed )

Rosenberg v. Mason, 157 Va. 215
(1931)(theft; $1,500 compensatory 
damages; reversed)

Chesapeake Ferry Co. v. Hudgins, 155 Va.
T7TTT931 ) (drunkness and having women 
in room; $7,057.15 compensatory 
damages; reversed)

Bragg v. Hammack, 155 Va. 419 (1930)
(immoral and ungentlemanly conduct; 
one cent; reversed)

James v. Powell, 154 Va. 96 (1930)
(robbery-; $”1,100 compensatory damages 
affirmed)

Powell v. Young, 151 Va. 985 (1928)
(* shark" in business; $1,000 
compensatory damages; reversed)

Jordan v. Melville Shoe Corp., 150 Va. 
fOi (1928)(theft; $3,506 damages; 
reversed)

W.T. Grant Co. v. Owens, 149 Va.906
(1928)(theft; $9^000 compensatory 
damages; affirmed)

Penick v. Ratliffe, 149 Va. 618
(1927)(bribery; $2,200 compensatory 
damages; reversed)



- 27a

The Times-Dispatch Publishing Co. v.
Zoll 7~T48Va. 8 50 T 1  927) (plaint iff 
arrested; $750 compensatory damages; 
affirmed)

Wright v. Corfield, 146 Va. 637 ( 1926) 
(plaintiff called "cattle"; $1 
compensatory damages and $999 punitive 
damages; affirmed)

Aylor v.Gibbs, 143 Va. 644 (1925)
(theft; $1,250 compensatory damagaes; 
affirmed)

Lightner v. Osborn, 142 Va. 19 (1925)
(theft; $3,000 compensatory damages; 
affirmed)



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