Celle v. Filipino Reporter Enters., Inc.

The full case caption appears at the end of this opinion. I. INTRODUCTION This case illustrates the continuingdifficulty in balancing protection of reputation and freedom topublish. See U.S. Const. amend. 1. The scale is calibratedby a combination of state libel law and federal First Amendmentdoctrine. See, e.g., Hustler Magazine v. Falwell,485 U.S. 46, 52 (1988) (“False statements of fact are particularlyvalueless; . . . they cause damage to an individual’s reputationthat cannot easily be repaired by counterspeech, however persuasiveor effective. But even though falsehoods have little value inand of themselves, they are nevertheless inevitable in free debate,and a rule that would impose strict liability on a publisher forfalse factual assertions would have an undoubted chilling effecton speech relating to public figures that does have constitutionalvalue. Freedoms of expression require breathing space.” (internalquotation marks and citations omitted)); Herbert v. Lando,441 U.S. 153, 203 (1979) (Marshall, J., dissenting) (“Statesundeniably have an interest in affording individuals some measureof protection from unwarranted defamatory attacks. Libel actionsserve that end, not only by assuring a forum in which reputationscan be publicly vindicated and dignitary injuries compensated,but also by creating incentives for the press to exercise consideredjudgment before publishing material that compromises personalintegrity.”); see generally Thomas I. Emerson, TheSystem of Freedom of Expression 517 (1971) (“[T]he lawof libel seeks to protect various individual interests againstinjury resulting from false and defamatory communication. It runssquarely into the right to freedom of expression.”). Both trial and appellate judges areobliged to exercise a heightened standard of jury supervisionin protecting the media’s freedom of speech while taking stepsto ensure that this freedom is not abused to injure others. See,e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1,17 (1990) (“[I]n cases raising First Amendment issues . .. an appellate court has an obligation to ‘make an independentexamination of the whole record’ in order to make sure that the’judgment does not constitute a forbidden intrusion on the fieldof free expression.’”); cf. Young v. American MiniTheatres, Inc., 427 U.S. 50, 88 (1976) (Stewart, J., dissenting)(“[Courts] must never forget that the consequences of rigorouslyenforcing the guarantees of the First Amendment are frequentlyunpleasant. Much speech that seems to be of little or no valuewill enter the market place of ideas, threatening the qualityof our social discourse and, more generally, the serenity of ourlives. But that is the price to be paid for constitutional freedom.”). Here the jury found that the individualplaintiff and his radio station had been libeled in three newspaperarticles published by the individual defendant and his newspaper.Although the jury concluded that plaintiff had not suffered actualdamages, it awarded $1.00 in nominal damages and $15,000 in punitivedamages. The finding of libel as to the firstand third articles was sufficiently supported by the evidence.The finding of libel with respect to the second article was notsupported by the evidence as analyzed under the demanding standardsof New York’s libel law and the First Amendment. Despite this partial failure of proof,the $1.00 nominal damages award as to the first and third articlesis affirmed. Moreover, the jury had ample evidence to supportthe conclusion that defendants acted with malice and ill willtowards plaintiffs in publishing the first and third articles.Given the failure of proof with respect to the second article,however, the punitive damages award is excessive by the amountof $5,000. II. FACTS A. Parties Plaintiff-appellee Lino Celle is a radiocommentator at Radyo Pinoy. His listeners come mainly from theFilipino-American community of the New York City area and northernNew Jersey (the “Metropolitan” area). Radyo Pinoy isa “side carrier,” – in order to listen to its programsa special radio is required to pick up its frequency. Celle isalso the president of Radyo Pinoy’s owner, plaintiff-appelleeRadio Mindanao-USA, Inc. (“RMN-USA”), and a columnistfor the newspaper Headline Philippines. Catering to the same community as Celle,defendant-appellant Libertito Pelayo is the editor-in-chief anda journalist for the newspaper Filipino Reporter. Pelayois also president of defendant-appellant Filipino Reporters Enterprises,Inc., which owns and operates the Filipino Reporter. Pelayo and Celle share a disaffectionfor one another resulting in part from their operation of competingmedia for the Metropolitan Filipino-American community. It wasexacerbated by newspaper articles Celle wrote in 1995 and 1996about a criminal conviction of Pelayo’s daughter. B. Ty Litigation Some of the libel claims at issue relateto Pelayo’s reporting of an otherwise unrelated defamation suitbrought by one Magdalena Ty against Celle and Radyo Pinoy. Tyalleged that during a February 1995 radio broadcast Celle describedher as a “swindler,” a “cheat,” and “itchy.”She claimed that Celle’s insults were prompted by his (in herview, erroneous) belief that she had failed to pay for advertisingspots broadcast by Radyo Pinoy. Celle and RMN-USA moved for summaryjudgment in the Ty case. The court denied the motion in an opiniondated April 9, 1997, ruling that there were genuine issues ofmaterial fact as to whether, in making the allegedly defamatorystatements about Ty, Celle had been negligent. See Tyv. Celle, No. Civ. 95-2631, 1997 WL 167041, at *2-3 (S.D.N.Y.April 9, 1997). The opinion also declared that there were genuineissues of material fact as to whether Celle’s statements aboutTy – including his suggestion that she welshed on her debts -were truthful. Id. C. The Three Articles This suit arises out of three articlespublished in two consecutive issues of the weekly FilipinoReporter. The seven statements that form the basis for plaintiffs’action are emphasized in the text below, and identified by bulletpoints. 1. First Article On April 11, 1997, the Filipino Reporterpublished a front page article reporting the Ty summary judgmentdecision. The main headline of the article read: “Pinoy radioman’strial for libel going to a jury.” Beneath the main headlinewas another (smaller) sub-headline. It and the first sentenceof the article constitute the first statement at issue in thearticle: US judge finds Celle ‘negligent’

A United States district judge foundRadio Pinoy announcer Lino Celle “negligent”in making defamatory statements against a Filipino businesswomanin his radio show, and dismissed Celle’s motion for summary judgmentin a 10-page opinion and order issued April 8, 1997. (emphasisadded).

The article continued: The judge “gaveweight to plaintiff Magdalena (Kathy) Ty['s] testimony that sheis not a cheater or a swindler, and that she never fooled retailersas Celle charged in his radio program.” The second statement at issue in thearticle followed: Moreover, [the judge] said, Ty claimedthat she did not owe RMN (Radio Mindanao Network) money for advertisementsand “therefore Celle’s statements implying that she failedto pay her debts to RMN were false.” (emphasis added). 2. Second Article In response to the April 11 article,Celle issued a press release and called approximately one hundrednews outlets, threatening to sue if they did not discontinue salesof the April 11 edition of the Filipino Reporter. Celle’s actions were the basis of thesecond article which appeared on the front page of the April 25,1997 edition of the Filipino Reporter. It was entitled”Store owners defy radioman’s threats,” and opened withthe first statement at issue:

Alarmed by dwindling listeners, advertisersand an ongoing lawsuit, a controversial New Jersey based radioannouncer last week took a last-ditch desperate act by scaringoutlets with lawsuits if they distributed copies of TheFilipino Reporter containing a factual report of a court decisionrejecting his motion to dismiss a $5 million defamation suit slappedagainst him. (emphasis added) (bold in original).

The second statement at issue read:

Store outlets throughout the metro NewYork and New Jersey area ignored the black propaganda of Celleand his cohorts . . . . (emphasis added).

3. Third Article In addition to the second article, theApril 25 edition of the Filipino Reporter contained a smallerarticle, entitled “AT&T reviews contract.” Thisthird article appeared directly below the second. It began withthe first statement at issue:

In another development, AT&Tis reportedly withdrawing its sponsorship of Radyo Pinoy whenits contract expires in July. AT&T has been receivinginformation from some listeners who claimed that they are offendedby the foul language used by Celle in his program. (emphasis added).

The second statement immediately followed:

In addition, it is alleged that AT&Tis being shortchanged of its allotted time slot. (emphasisadded).

The third statement followed one sentencelater:

Critics of Radyo Pinoy claim theycould not get the frequency even in nearby areas such as JerseyCity. (emphasis added).

D. District Court Proceedings The complaint of Celle and RMN-USA allegedthat defendants had published the statements because FilipinoReporter is a competitor of Headline Philippines andbecause Pelayo was angry at Celle as a result of unflatteringarticles Celle had written about Pelayo’s daughter. On the first day of trial, the courtissued three rulings from the bench. First, it held that Celleand RMN-USA are public figures. Second, it concluded that if thevarious statements were proven false, they constituted libel perse because they disparaged the plaintiffs’ professional reputation,and that, therefore, the plaintiffs were not required to provespecial damages. Finally, the court concluded that each statementwas one of fact rather than opinion, and, therefore, that allthe statements were actionable. After the plaintiffs rested, the defendantsmoved for a directed verdict. See Fed. R. Civ. P. 50(a).The court reserved decision. Without objection, the court reliedupon the authoritative New York Pattern Jury Instructions in draftingthe jury charge and the verdict sheet. See, e.g., 2 Committeeon Pattern Jury Instructions, New York Pattern Jury Instructions-Civil,PJI 3:23, cmt.2 (cumm. supp. 1999) (hereinafter “New YorkPattern Jury Instructions”). These draft instructions – withextensive citations to cases, statutes and secondary authorities- are kept up-to-date by a distinguished group of New York SupremeCourt Justices and law professors. They are relied upon in NewYork courts and in federal courts in diversity actions. The jury was instructed that it shouldfind an article libelous only if the plaintiffs had succeededin proving (i) that it was defamatory, (ii) that it referred tothe plaintiffs, (iii) that it had been read by a third party,(iv) that the statements were false, and (v) that the defendantshad published the article with knowledge that it was false orwith reckless disregard of its truth or falsity. Should the jury determine that the plaintiffshad met the burden of proof on all five elements as to any article,it was directed to then consider damages. As to compensatory damages,the court stated that the plaintiffs were entitled to compensationfor “[any] injury to [their] reputation and [any] humiliationand mental anguish in their public and private lives” thatwas caused by the articles found to be libelous. The jury wastold that, to the extent that it found that the plaintiffs sufferedno injury, it should award nominal damages of $1. Finally, thejury was informed that it could award punitive damages if it foundthat in publishing the articles the defendants had acted maliciously,that is to say that they had made the statements “with deliberateintent to injure,” “out of hatred, ill-will or spite”or “with willful, wanton or reckless disregard of another’srights.” The jury was provided with a verdictsheet structured as follows:

Answer Questions 1, 2, and3:

1. Do you find that plaintiffs were libeledby the first article?

Yes ____ No ____

2. Do you find that plaintiffs were libeledby the second article?

Yes ____ No ____

3. Do you find that plaintiffs were libeledby the third article?

Yes ____ No ____

If you answered “No” to allthree of Questions 1, 2, and 3, you are done with this specialverdict form and your deliberations are complete. If you answered”Yes” to any of Questions 1, 2, or 3, you mustproceed to Questions 4 and 5.

4. What amount of compensatory damages do youaward plaintiffs?

$ ____

5. Do you find that defendants acted maliciouslytoward plaintiffs?

Yes ____ No ____

If you answered “No” to Question5, you are done with this special verdict form and your deliberationsare complete. If you answered “Yes” to Question 5, youmust proceed to Question 6.

6. What amount of punitive damages, if any,do you award plaintiffs?

$ ____

(bold in original).

It is noteworthy that an answer of “yes”to “any” of questions 1, 2, or 3 would require the juryto consider damages. Thus, if any one or more of the articleswas defamatory, the jury was authorized to find compensatory (includingnominal) and punitive damages. Appellants approved this verdictsheet; they did not seek to have either compensatory damages orpunitive damages allocated to particular articles. Cf.Levine v. CMP Publications, Inc., 738 F.2d 660, 674-76(5th Cir. 1984) (damages allocated among the various libelousarticles). The jury returned a verdict findingthat all three of the articles libeled the plaintiffs; that theplaintiffs were entitled to $1 in compensatory damages; that thedefendants had “acted maliciously”; and that the plaintiffswere entitled to $15,000 in punitive damages. Pursuant to Rule 50(b) of the FederalRules of Civil Procedure, the defendants renewed their motionfor entry of judgment in their favor and, in the alternative,sought a new trial. The district court denied the motion and enteredjudgment for $15,001 in accordance with the verdict. III. LAW A. Choice Federal courts exercising diversityjurisdiction apply the choice-of-law rules of the forum state,here New York, to decide which state’s substantive law governs.See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.487, 496 (1941); see also Erie R.R. v. Tompkins,304 U.S. 64, 74-77 (1938). As a first approach to the choice oflaw problem in libel actions New York assumes that the state ofthe plaintiff’s domicile will usually have the most significantinterest in the case and that its law should therefore govern.See, e.g., Lee v. Bankers Trust Co., 166 F.3d 540,545 (2d Cir. 1999) (applying New Jersey libel law; “UnderNew York choice-of-law rules in defamation cases the state ofthe plaintiff’s domicile will usually have the most significantrelationship to the case, and its law will therefore govern.”(internal quotation marks and citations omitted)). Were this standardapplied, New Jersey’s libel law might govern since both plaintiffsCelle and RMN-USA are New Jersey residents and a large portionof defendants’ readership is in that state, suggesting that NewJersey might be the center of gravity for the dispute. The district court applied New Yorklibel law, explicitly relying on the New York Pattern Jury Instructionsin drafting the charge without objection from any party. Sinceno party has challenged the choice of New York libel law, allare deemed to have consented to its application. See Templemanv. Chris Craft Corp., 770 F.2d 245, 248 (1st Cir. 1985); seealso Schwimmer v. Allstate Ins. Co., 176 F.3d 648,650 (2d Cir. 1999); Cargill, Inc. v. Charles Kowsky Resources,Inc., 949 F.2d 51, 55 (2d Cir. 1991). No reason of policywarrants a departure from their implied choice-of-law. ComparePrinting Mart Morristown v. Sharp Electronics Corp., 563A.2d 31, 43-47 (N.J. 1989), with NY Pattern Jury Instructions,supra, PJI 3:34, at 275-76; cf. Cooney v. OsgoodMach. Inc., 81 N.Y.2d 66, 78-79 (1993) (public policy exceptionin contracts choice of law). In practice, litigants often ignoreconflicts rules, opting instead to apply the law of the forumfor reasons of familiarity, expediency or ignorance. To now remandfor a finding of the center of gravity’s location, see generallyHarold L. Korn, The Choice-of-Law Revolution: A Critique,83 Colum. L. Rev. 772, 821 (1983), would permit a losing partyto lead a trial court into error and then to profit on appealfrom the misguidance. Such ambushes are inconsistent with the”just, speedy, and inexpensive determination” of casesrequired by the Federal Rules of Civil Procedure. Fed.R.Civ.P.1. B. Libel Libel is a method of defamation expressedin writing or print. See J.D. Lee & Barry A. Lindahl,Modern Tort Law: Liability & Litigation � 36.04,at 226 (rev. ed. 1997); Robert D. Sack, 1 Sack on Defamation:Libel, Slander and Related Problems � 2.3, at 2-7 (3ded. 1999) [hereinafter Sack on Defamation]. Under New Yorklaw, a plaintiff must establish five elements to recover in libel: 1) a written defamatory statement offact concerning the plaintiff; 2) publication to a third party; 3) fault (either negligence or actualmalice depending on the status of the libeled party); 4) falsity of the defamatory statement;and 5) special damages or per se actionability(defamatory on its face). See, e.g.,Church of Scientology Int’l v. Eli Lilly & Co., 779F.Supp. 661, 666 (S.D.N.Y. 1991); Angio-Medical Corp. v. EliLilly & Co., 720 F.Supp. 269, 272 (S.D.N.Y. 1989); 43ANY Jur. 2d: Defamation and Privacy �1, at 198 (1994);Restatement (Second) of Torts � 558, at 155 (1977);NY Pattern Jury Instructions, supra, PJI 3:34, at275-276. Though a state-based cause-of-action,the elements of a libel action are heavily influenced by the minimumstandards required by the First Amendment. See, e.g., PhiladelphiaNewspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986) (publicfigure must “surmount a much higher barrier”); Gertzv. Robert Welch, Inc., 418 U.S. 323 (1974); Curtis Pub’gCo. V. Butts, 388 U.S. 130 (1967); New York Times Co. v.Sullivan, 376 U.S. 254 (1964); see also SchiavoneConstr. Co. v. Time, Inc., 847 F.2d 1069, 1082 (3d Cir. 1988)(intricate relationship between First Amendment and state libellaw). In particular, the showing of fault necessary to recoverfor libel varies depending on a plaintiff’s position in society,requiring a higher degree of fault for public officials and publicfigures. 1. Public Figures If the plaintiff is a public officialor public figure suing a media defendant, the First Amendmentrequires actual malice. See Curtis Pub’g Co. v.Butts,388 at 155 (public figures); New York Times, 376 U.S. at279-80 (public officials); see also Gertz, 418 U.S.at 347 (“States may define for themselves the appropriatestandard of liability for a publisher or broadcaster of defamatoryfalsehood injurious to a private individual.”); see generallyJerome A. Barron & C. Thomas Dienes, Handbook of Free Speechand Free Press �� 6:11-6:14, at 276-99 (1979); ErikWalker, Comment, Defamation Law: Public Figures – Who Are They?,45 Baylor L. Rev. 955 (1993). Those who have voluntarily sought andattained influence or prominence in matters of social concernare generally considered public figures. See Gertz,418 U.S. at 324 (public figure is one who has achieved “generalfame or notoriety in the community, and pervasive involvementin the affairs of society”); see, e.g., Time, Inc.v. Firestone, 424 U.S. 448, 453 (1976) (wealthy divorcee whodid not “assume any role of especial prominence in the affairsof society . . . [and] did not thrust herself to the forefrontof any particular public controversy” was not a public figure).Whether a plaintiff is a public figure is a question of law forthe court. See, e.g., Marcone v. Penthouse Int’l Magazinefor Men, 754 F.2d 1072, 1081 n.4 (2d Cir. 1985) (“Theclassification of a plaintiff as a public or private figure isa question of law to be determined initially by the trial courtand then carefully scrutinized by the appellate court.”). Given plaintiff Celle’s own characterizationof himself as a “well known radio commentator” withinthe Metropolitan Filipino-American community, the district courtcorrectly held that he is a public figure. See, e.g., Maulev. NYM Corp., 429 N.E.2d 416, 417-18 (N.Y. 1981) (holdingnational sports writer to be a public figure). Plaintiff RMN-USA’sstatus as owner and operator of a primary media outlet of theMetropolitan Filipino-American community – allowing it accessto the “channels of communication” to rebut defamatoryaccusations – supports characterizing it as a public figure. SeeBruno & Stillman, Inc. v. Globe Newspaper Co., 633F.2d 583, 589 (1st Cir. 1980) (“To the extent that accessto the channels of communication is a meaningful factor, we suspectthat many, if not most, corporations have no particular advantageover private individuals.”); cf. Brown & WilliamsonTobacco Corp. v. Jacobson, 713 F.2d 262, 273 (7th Cir. 1983)(“[I]f the purpose of the public figure-private person dichotomyis to protect the privacy of individuals who do not seek publicityor engage in activities that place them in the public eye, thereseems no reason to classify a large corporation as a private person.”). As public figures, plaintiffs had toestablish actual malice to recover. 1. Defamation The gravaman of an action alleging defamationis an injury to reputation. The New York Court of Appeals hasdefined a defamatory statement as one that exposes an individual”to public hatred, shame, obloquy, contumely, odium, contempt,ridicule, aversion, ostracism, degradation, or disgrace, or .. . induce[s] an evil opinion of one in the minds of right-thinkingpersons, and . . . deprives one of . . . confidence and friendlyintercourse in society.” Kimmerle v. New York EveningJournal, 186 N.E. 217, 218 (N.Y. 1933); see Golubv. Enquirer/Star Group, Inc., 681 N.E.2d 1282, 1283 (N.Y.1997). a. Principles of Interpretation “Whether particular words are defamatorypresents a legal question to be resolved by the court[s] in thefirst instance.” Aronson v. Wiersma, 483 N.E.2d 1138,1139 (N.Y. 1985). The New York Court of Appeals has developedstandards that federal courts follow in determining whether astatement or publication is defamatory. See, e.g., Davisv. Ross, 754 F.2d 80, 83 (2d Cir. 1985). First, the Court of Appeals has repeatedlyinstructed that courts “must give the disputed language afair reading in the context of the publication as a whole.”Armstrong v. Simon & Schuster, Inc., 649 N.E.2d 825,829 (N.Y. 1995) (emphasis added). Challenged statements are notto be read in isolation, but must be perused as the average readerwould against the “whole apparent scope and intent”of the writing. November v. Time Inc., 194 N.E.2d 126,128 (N.Y. 1963); see, e.g., Aronson, 483 N.E.2dat 1139 (“[t]he words must be construed in the context ofthe entire statement or publication as a whole, [and] testedagainst the understanding of the average reader” (emphasisadded)). Second, courts are not to “‘strain’to interpret such writings ‘in their mildest and most inoffensivesense to hold them nonlibelous.’” November, 194 N.E.2dat 128. A fair reading controls. Finally, “the words are to be construednot with the close precision expected from lawyers and judgesbut as they would be read and understood by the public to whichthey are addressed.” Id. (emphasis added). Itis the meaning reasonably attributable to the intended readerthat controls. This determination can be particularly difficultwhere the readership in question constitutes a distinct ethniccommunity of which the judge is unfamiliar. In such instances,expert evidence or surveys can be useful, though none was suppliedby the parties here. b. Defamatory Meaning A plaintiff in a libel action must identifya plausible defamatory meaning of the challenged statement orpublication. If the statement is susceptible of only one meaningthe court “must determine, as a matter of law, whether thatone meaning is defamatory.” Davis, 754 F.2d at 82;see Aronson, 483 N.E.2d at 1139. If the words arereasonably susceptible of multiple meanings, some of which arenot defamatory, “it is then for the trier of fact, not forthe court acting on the issue solely as a matter of law, to determinein what sense the words were used and understood.” Davis,754 F.2d at 83. c. Opinion The court must also decide as a matterof law whether the challenged statement is opinion. Rinaldiv. Holt, Rinehart & Winston, 366 N.E.2d 1299, 1306 (N.Y.1977) (“Whether a particular statement constitutes fact oropinion is a question of law.”). Unlike the Federal Constitution,the New York Constitution provides for absolute protection ofopinions. See Flamm v. American Assoc. of Univ. Women,200 F.3d 144, 147-48 (2d Cir. 2000); compare Milkovichv. Lorain Journal Co., 497 U.S. 1, 21 (1990) (rejecting theargument that “an additional separate constitutional privilegefor ‘opinion’ is required to ensure the freedom of expressionguaranteed by the First Amendment.”), with ImmunoAG v. Moor-Jankowski, 567 N.E.2d 1270, 1280 (N.Y. 1991) (Kaye,C.J.) (expressions of “pure” opinion receive absoluteconstitutional protection under the New York Constitution), andDaniel Goldreyer, Ltd. v. Van de Wetering, 217 A.D. 2d434, 435 (1st Dep’t 1995) (“imaginative expression”and “rhetorical hyperbole” are “pure” opinionsubject to New York constitutional protection); cf. RobertD. Sack, Protection of Opinion Under the First Amendment: Reflectionson Alfred Hill, “Defamation and Privacy Under the First Amendment”,100 Colum. L. Rev. 294, 297-300, 322-25 (2000) (difficulty indefining non-actionable “opinions”). The “essential task is to decidewhether the words complained of, considered in the context ofthe entire communication and of the circumstances in which theywere . . . written, may be reasonably understood as implying theassertion of undisclosed facts justifying the opinion.” Steinhilberv. Alphonse, 501 N.E.2d 550, 552-53 (N.Y. 1986). If the statementreasonably would be understood as implying undisclosed facts thenit is not protected opinion under New York’s constitution. Id.;see also Mr. Chow of New York v. STE Jour Azur S.A.,759 F.2d 219, 224 (2d Cir. 1985) (“[T]he inquiry into whethera statement should be viewed as one of fact or one of opinionmust be made from the perspective of an ‘ordinary reader‘of the statement.” (emphasis added)). The New York Court of Appeals has suggesteda four factor test for differentiating statements of protectedopinion from those asserting or implying actionable facts. SeeImmuno AG, 567 N.E.2d at 1280. These are:

1) “an assessment of whether the specific language in issuehas a precise meaning which is readily understood or whether itis indefinite and ambiguous”;

2) “a determination of whether the statement is capable ofbeing objectively characterized as true or false”;

3) “an examination of the full context of the communicationin which the statement appears”; and

4) “a consideration of the broader social context or settingsurrounding the communication including the existence of any applicablecustoms or conventions which might signal to readers or listenersthat what is being read or heard is likely to be opinion, notfact.”

Steinhilber,501 N.E.2d at 554 (internal quotation marks and citations omitted)(quoting Ollman v. Evans, 750 F.2d 970, 976 (D.C. Cir.1984) (en banc) (plurality opinion)). Notably, the Steinhilbercourt was careful to “eschew any attempt . . . to reducethe problem of distinguishing fact from opinion to a rigid setof criteria which can be universally applied.” Id.The burden rests with the plaintiff to establish that in the contextof the entire communication a disputed statement is not protectedopinion. d. Defamatory Per Se New York recognizes certain statementsas defamatory per se, meaning they are actionable without “pleadingand proof of special damages.” Davis, 754 F.2d at82. “Special damages consist of ‘the loss of something havingeconomic or pecuniary value which must flow directly from theinjury to reputation caused by the defamation[.]‘” Mathersonv. Marchello, 100 A.D. 233, 235 (2d Dep’t 1984); seeSack on Defamation, supra, � 2.8.7.1, at 2-113(“Special damages refers only to pecuniary damages such asout-of-pocket loss.” (internal citations omitted)); cf.Blumenstein v. Chase, 100 A.D.2d 243, 246 (2d Dep’t 1984)(distinguishing special damages from actual damages); Sackon Defamation, supra, � 2.8.7.1., at 2-113 (distinguishingspecial damages under state libel law from actual damages as usedby the Supreme Court in Gertz v. Robert Welch, Inc., 418U.S. 323 (1974); actual damages is broader than special damages,and includes “impairment of reputation and standing in thecommunity, personal humiliation, and mental anguish and suffering.”). If a statement is defamatory per se,injury is assumed. In such a case, “[e]ven where the plaintiffcan show no actual damages at all, a plaintiff who has otherwiseshown defamation may recover at least nominal damages.” Van-GoTransport Co., Inc. v. New York City Bd. of Educ., 971 F.Supp. 90, 100 (E.D.N.Y. 1997); see, e.g., Buckley v.Littell, 539 F.2d 882, 897 (2d Cir. 1976) (nominal damagesof $1); Suckenick v. Levitt, 177 A.D.2d 416, 416 (1st Dep’t1991) (nominal damages of 1�); cf. Orlowski v.Koroleski, 234 A.D.2d 436, 437 (2d Dep’t 1996) (awarding nominaldamages in slander per se case where plaintiff failed to proveinjury). The line between statements that aredefamatory per se and those that require proof of special damagesremains fuzzy. See Mullenmeister v. Snap-On Tools Corp.,587 F.Supp. 868, 871 (S.D.N.Y. 1984) (“Considerable confusionpersists as to what constitutes [defamation] per se.”); Matherson,100 A.D.2d at 236 n.3 (noting confusion in cases and among commentators);Sack on Defamation, supra, � 2.8.6.4, at 2-106(“remains in disarray”). One useful general rule is that “‘awriting which tends to disparage a person in the way ofhis office, profession or trade’” is defamatory per se anddoes not require proof of special damages. Davis, 754 F.2dat 82 (emphasis in original) (quoting Nichols v. Item Publishers,132 N.E.2d 860, 862 (N.Y. 1956) (Fuld, J.)); see, e.g,November v. Time Inc., 194 N.E.2d 126, 128 (N.Y. 1963)(“Plaintiff is a professional man. If, on their face, they(the words) are susceptible in their ordinary meaning of sucha construction as would tend to injure him in that capacity, theyare libelous per se and the complaint, even in the absence ofallegation of special damage, states a cause of action.”(internal quotation marks and citations omitted)); Bowes v.Magna Concepts, Inc., 166 A.D.2d 347, 349 (1st Dep’t 1990)(same); Yesner v. Spinner, 765 F. Supp. 48, 52 (E.D.N.Y.1991) (“It has long been the law in New York that a defamatorystatement that is a direct attack upon the business, trade orprofession of the plaintiff is considered defamation ‘per se,’and therefore actionable without any proof of special damages.”);W. Page Keeton et al., Prosser and Keeton on the Law of Torts� 112, at 791 (5th ed. 1984) (“[I]t is actionable withoutproof of damage to say of a physician that he is a butcher . .., of an attorney that he is a shyster, of a school teacher thathe has been guilty of improper conduct as to his pupils, of aclergyman that he is the subject of scandalous rumors, of a chauffeurthat he is habitually drinking, of a merchant that his creditis bad or that he sells adulterated goods, of a public officerthat he has accepted a bribe or has used his office for corruptpurposes . . . – since these things discredit [one] in his chosencalling.”); cf. Golub v. Enquirer/Star Group,681 N.E.2d 1282, 1283 (N.Y. 1997); Liberman v. Gelstein,605 N.E.2d 344, 347-48 (N.Y. 1992). But see Kirby v.Wildenstein, 784 F. Supp. 1112, 1115 (S.D.N.Y. 1992) (productdisparagement actions differ from libel actions in that they dealwith “words or conduct which tend to disparage or reflectnegatively on the quality, condition or value of a product orproperty”). A related rule is that “[w]herea statement impugns the basic integrity or creditworthiness ofa business, an action for defamation lies and injury is conclusivelypresumed.” Ruder & Finn Inc. v. Seaboard Surety Co.,422 N.E.2d 518, 522 (N.Y. 1981); see Langenbacher Co.v. Tolksdorf, 199 A.D.2d 64, 65 (1st Dep’t 1993) (statementsthat impugn “the basic integrity, creditworthiness and competenceof the business” are defamatory per se); see alsoDavis, 754 F.2d at 82 (“words are libelous if theyaffect a person in his profession, trade, or business by imputingto him any kind of fraud, dishonesty, misconduct, incapacity,unfitness or want of any necessary qualification in the exercisethereof” (quoting Four Star Stage Lighting, Inc. v. Merrick,56 A.D.2d 767, 768 (1st Dep’t 1977))). e. Single Instance Rule The New York single instance rule isa narrow exception to the principle that a statement tending todisparage a person in his or her office, profession or trade isdefamatory per se. It “applies where a publication chargesa professional person with a single error in judgment,which the law presumes not to injure reputation.” Armstrongv. Simon & Schuster, Inc., 649 N.E.2d 825, 828 n.5 (N.Y.1995) (emphasis added) (internal citations omitted). Under thisrule – which is applied in only a minority of states – a statementcharging an individual with a “single dereliction inconnection with his or her trade, occupation, or profession doesnot necessarily charge that party with general incompetence, ignoranceor lack of skill and is not deemed actionable unless special damagesare pleaded and shown.” Bowes v. Magna Concepts, Inc.,166 A.D.2d 347, 348 (1st Dep’t 1990) (emphasis added). In applyingit, New York “recognizes the human tendency to err, and that,therefore, to state that even a businessman or professional personhas erred in a particular instance would not presumptively causedamage to that person in his business or profession, because suchstatement would imply no more than that the person was human.”Robert D. Sack, Common Law Libel and the Press: A Primer,372 PLI/Pat 35, 64-65 (1993) (quoting Annot., Libel and Slander:Actionability of Defamatory Statements as to Business Conduct,Relating to a Single Transaction or Occurrence, 51 A.L.R.3d1300 (1973)). The single instance exception does notapply where a statement or publication that refers to a singleinstance imputes a general unfitness or unskillfulness, suggestingmore than mere human error. See, e.g., Armstrong,649 N.E.2d at 828 n.5 (statement that attorney suborned perjurygoes beyond alleging mere human error and implies unethical character);Cabin v. Community Newspapers, Inc., 27 A.D.2d 543, 544(2d Dep’t 1966) (statement alleging grade tampering by memberof the Board of Education for the benefit of his son did not fallunder the single instance rule because it suggested a lack ofintegrity); Rutman v. Giedel, 67 A.D.2d 662, 662 (2d Dep’t1979) (statement that police officer was drunk while on duty goesbeyond alleging human error and suggests a “lack of character”). As its appellation implies, the singleinstance exception does not apply where a publication or articlecharges a plaintiff with multiple wrongful acts or lapses in judgment.See, e.g., Ocean State Seafood, Inc. v. Capital Newspaper,112 A.D.2d 662, 666 (3d Dep’t 1985). Compound charges of errorin a publication, when considered from the viewpoint of the averagereader, can have the effect of accusing the “plaintiff ofgeneral incompetence or dishonesty in his profession.” Udellv. New York News, Inc., 124 A.D.2d 656, 658 (2d Dep’t 1986);see also Immuno AG., 567 N.E.2d at 1278 (“Ithas long been our standard in defamation actions to read publishedarticles in context to test their effect on the average reader,not to isolate particular phrases but to consider the publicationas a whole.” (emphasis added)). As a result, defendantswho make compound charges of error are not entitled to the assumptionthat their charges did not injure reputation. 3. Falsity A public figure seeking recovery ina libel action against a media defendant must establish the falsityof the defamatory statements. See, e.g., PhiladelphiaNewspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986) (publicfigure must “show the falsity of the statements at issueto prevail in a suit for defamation”); cf. Garrisonv. State of Louisiana, 379 U.S. 64, 74 (1964) (public officialsmust establish “that the utterance was false”). Placingthis burden on plaintiffs has the effect of protecting some speechthat is false. See Philadelphia Newspapers, 475U.S. at 777. Nonetheless, this allocation is necessary to avoida chilling effect on truthful speech of public interest. SeeGertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) (“TheFirst Amendment requires that we protect some falsehood in orderto protect speech that matters.”); see also NewYork Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) (“‘Somedegree of abuse is inseparable from the proper use of every thing;and in no instance is this more true than in that of the press.’”(citing 4 Elliot’s Debates on the Federal Constitution571 (1876) (quoting James Madison))). At present it is unclear whether a publicfigure must establish falsity by a preponderance of the evidenceor by clear and convincing proof. Cf. Goldwater v. Ginzburg,414 F.2d 324, 341 (2d Cir. 1969) (New York Times establishedclear and convincing evidence as the burden of proof necessaryonly for actual malice, without expressly altering the burdenof proof of other elements of libel, including falsity). The SupremeCourt has expressly declined to address this issue. SeeHarte-Hanks Communications, Inc. v. Connaughton, 491 U.S.657, 661 n.2 (1989) (“There is some debate as to whetherthe element of falsity must be established by clear and convincingevidence or by a preponderance of the evidence. . . . We expressno view on this issue.” (internal citations omitted)); cf.Philadelphia Newspapers, 475 U.S. at 779 n.4 (“Wealso have no occasion to consider the quantity of proof of falsitythat a private-figure plaintiff must present to recoverdamages.” (emphasis added)). The district court, without objectionfrom the parties and in reliance on the New York Pattern JuryInstructions, cautioned the jury that falsity must be establishedby clear and convincing evidence. See New York PatternJury Instructions, supra, PJI 3:34, at 276 (“Fourth,plaintiff must prove by clear and convincing evidence thatthe statement was false, meaning substantially untrue.”);see generally Marc A. Franklin & Daniel J. Bussel,The Plaintiff’s Burden in Defamation: Awareness and Falsity,25 Wm. & Mary L. Rev. 825, 864 (1983) (“Because the demarcationbetween the truth and falsity of the statement is of constitutionaldimension, imposition of a preponderance of the evidence standardon the plaintiff is inadequate. If the plaintiff must persuadethe court with convincing clarity that the defendant was at fault,the court certainly should not use a less rigorous standard todetermine whether the statement was false.”). Whether infact clear and convincing proof is required to establish falsityunder the Federal Constitution must remain an open question because,as the analysis below indicates, the facts of this case do notprovide an occasion to resolve it. See Parts IV.B.2, C.2,and D.2, infra. In any event, the trial court’s applicationof the clear and convincing standard favored defendant-appellants,and it was in accordance with the New York Pattern Jury Instructions,see New York Pattern Jury Instructions, supra, PJI3:23; deference to state substantive law is appropriate underErie. Finally, in determining whether plaintiffshave established falsity, trial and appellate judges have a constitutionalduty to carefully scrutinize the record as an added protectionof the press. See New York Times, 376 U.S. at 285(“We must ‘make an independent examination of the whole recordso as to assure ourselves that the judgment does not constitutea forbidden intrusion on the field of free expression.” (internalcitation omitted)); Lerman v. Flynt Distrib. Co., 745 F.2d123, 140 (2d Cir. 1984) (same). The court should be left withno apprehension on the issue of falsity. 1. Actual Malice As already noted, a public figure cannotrecover damages for defamatory falsehoods unless he or she provesthat the statement was made with actual malice at the time ofpublication. See, e.g., Curtis Publ’g Co. v. Butts,388 U.S. 130, 155 (1967) (plurality opinion); Schiavone Constr.Co. v. Time, Inc., 847 F.2d 1069, 1076 (2d Cir. 1987); Mr.Chow of New York v. STE. Jour Azur S.A., 759 F.2d 219, 230(2d Cir. 1985). This demanding burden is based on two considerations.First, public figures (and public officials) generally enjoy accessto the channels of communication and hence have an effective alternativeoutside of litigation to counteract false statements. SeeGertz, 418 U.S. at 344 (“The first remedy of any victimof defamation is self�help – using available opportunitiesto contradict the lie or correct the error and thereby to minimizeits adverse impact on reputation.”). Second, they have knowinglyand voluntarily exposed themselves to increased media scrutinyand an accompanying risk of injury from defamatory falsehoodsby assuming a greater role in the public arena. See id.at 344-45. But see generally Edward T. Fenno, PublicFigure Libel: The Premium on Ignorance and the Race to the Bottom,4 S.Cal. Interdisc. J. 253 (1995). Actual malice requires proof that thepublisher had a subjective awareness of either falsity or probablefalsity of the defamatory statement, or acted with reckless disregardof the its truth or falsity. See New York Times,376 U.S. at 280 (actual malice means “with knowledge that[the defamatory statement] was false or with reckless disregardof whether it was false or not”); Lerman, 745 F.2dat 141 (same); Hotchner v. Castillo-Puche, 551 F.2d 910,912 (2d Cir. 1977) (“knowledge of falsity or with recklessdisregard for the truth”; “[R]eckless disregard of thetruth (means) subjective awareness of probable falsity . . . .”(internal quotations and citations omitted)). Although actual malice is subjective,a “court typically will infer actual malice from objectivefacts.” Bose Corp. v. Consumers Union of United States,Inc., 692 F.2d 189, 196 (1st Cir. 1982) (“whether [defendant]in fact entertained serious doubts as to the truth of the statementmay be proved by inference, as it would be rare for a defendantto admit such doubts.”), aff’d, 466 U.S. 485 (1984);Dalbec v. Gentleman’s Companion, Inc., 828 F.2d 921, 927(2d Cir. 1987) (“Malice may be proved inferentially becauseit is a matter of the defendant’s subjective mental state, revolvesaround facts usually within the defendant’s knowledge and control,and rarely is admitted.”). These facts should provide evidenceof “negligence, motive and intent such that an accumulationof the evidence and appropriate inferences supports the existenceof actual malice.” Bose Corp., 692 F.2d at 196 (emphasisadded); see Goldwater, 414 F.2d at 342 (“Thereis no doubt that evidence of negligence, of motive and of intentmay be adduced for the purpose of establishing, by cumulationand by appropriate inferences, the fact of a defendant’s recklessnessor of his knowledge of falsity.”) Actual malice can be established “[t]hroughthe defendant’s own actions or statements, the dubious natureof his sources, [and] the inherent improbability of the story[among] other circumstantial evidence[.]” Liberty Lobby,Inc. v. Dow Jones & Co., 838 F.2d 1287, 1293 (D.C. Cir.1988); see Clyburn v. News World Communications, Inc.,903 F.2d 29, 33 (D.C. Cir. 1990) (proof of actual malice “maytake the form of circumstantial evidence, such as the existenceof ‘obvious reasons to doubt the veracity of the informant orthe accuracy of his reports’”). But see St. Amantv. Thompson, 390 U.S. 727, 732-33 (1968) (“Failure toinvestigate does not in itself establish bad faith.”(emphasis added)). Evidence of ill will combined with othercircumstantial evidence indicating that the defendant acted withreckless disregard of the truth or falsity of a defamatory statementmay also support a finding of actual malice. See Tavoulareasv. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987) (en banc). Butsee Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185, 1198n.17 (11th Cir. 1999) (“Ill-will, improper motive or personalanimosity plays no role in determining whether a defendant actedwith ‘actual malice.’”). Standing alone, however, evidenceof ill will is not sufficient to establish actual malice. SeeHarte-Hanks Communications, 491 U.S. at 666 (“theactual malice standard is not satisfied merely through a showingof ill will or ‘malice’ in the ordinary sense of the term”);Shoen v. Shoen, 48 F.3d 412, 417 (9th Cir. 1995) (evidenceof ill will “cannot, without more, establish actual malice”);Contemporary Mission, Inc. v. New York Times Co., 842 F.2d612, 622-23 (2d Cir. 1988) (“bare assertions of ill willare not sufficient to establish a triable issue of actual malice”);see also Tavoulareas, 817 F.2d at 795 (“Therationale for this rule is that speech ‘honestly believed,’ whateverthe speaker’s motivation, ‘contribute[s] to the free interchangeof ideas and the ascertainment of truth.’”); see alsoid. at 795 & n.45 (“The appropriateness of suchevidence must be determined on a case-by-case basis[.]“(emphasis added)). Whatever evidence is relied upon, actualmalice must be supported by clear and convincing proof. See,e.g., Bose Corp. v. Consumers Union of United States,466 U.S. 485, 511 n.30 (1984) (“clear and convincing evidencethat the defendant realized that his statement was false or thathe subjectively entertained serious doubt as to the truth of hisstatement”); New York Times, 376 U.S. at 285-86 (mustbe established by “the convincing clarity which the constitutionalstandard demands”); see also Gertz, 418 U.S.at 342 (“This standard administers an extremely powerfulantidote to the inducement to media self�censorship of thecommon�law rule of strict liability for libel and slander.”). In reviewing a finding of actual malice,judges are constitutionally obligated to conduct an independentexamination of the whole record. See Dalbec, 828F.2d at 927. This task is complicated in situations, such as theinstant case, where the evidence turns in substantial measureon questions of credibility that are not easily resolved froma cold transcript. See Newton v. National Broad. Corp.,930 F.2d 662, 671 (9th Cir. 1990) (“even when we accord credibilitydeterminations the special deference to which they are entitled,we must nevertheless examine for ourselves the factual recordin full” (internal quotation marks and citations omitted));cf. Harte�Hanks, 491 U.S. at 700 (Scalia, J.,concurring) (“I would … mak[e] our independent assessmentof whether malice was clearly and convincingly proved on the assumptionthat the jury made all the supportive findings it reasonably couldhave made.”). But see generally Marc E. Sorini, Note,Factual Malice: Rediscovering the Seventh Amendment in PublicPerson Libel Cases, 82 Geo.L.J. 563, 593-95 (1993) (independentcourt review of jury findings of actual malice clashes with SeventhAmendment). Nonetheless, the appellate court must find “clearand convincing evidence that the ‘defendant in fact entertainedserious doubts as to the truth of his publication,’ or, in thealternative, knew of its falsity.” Dalbec, 828 F.2dat 927 (quoting St. Amant, 390 U.S. at 731-32)); seeBose Corp., 466 U.S. at 511 (“Judges, as expositorsof the Constitution, must independently decide whether the evidenceis sufficient to cross the constitutional threshold that barsthe entry of any judgment that is not supported by clear and convincingproof of ‘actual malice.’”). 1. Punitive Damages Punitive damages may only be assessedunder New York law if the plaintiff has established common lawmalice in addition to the other elements of libel. SeeProzeralik v. Capital Cities Communications, 626 N.E.2d34, 41-42 (N.Y. 1993). To do so, plaintiffs must prove by a preponderanceof the evidence that the libelous statements were made out of”hatred, ill will, [or] spite.” Id. at 42.

Actual malice, as defined in New York Times Co. v. Sullivan,is insufficient by itself to justify an award of punitive damages,because that malice focuses on the defendant’s state of mind inrelation to the truth or falsity of the published information.This does not measure up to the level of outrage or malice underlyingthe public policy which would allow an award of punitive damages,i.e., “to punish a person for outrageous conduct which ismalicious, wanton, reckless, or in willful disregard of another’srights.”

Id.(citations omitted). Common law malice is established byexamining all of the relevant circumstances surrounding the dispute,including any rivalries and earlier disputes between the partiesso long as they are not too remote. See, e.g., Herbertv. Lando, 441 U.S. 162, 164 n.12 (1979) (“any competentevidence, either direct or circumstantial, can be resorted to[to establish common law malice], and all the relevant circumstancessurrounding the transaction may be shown, provided they are nottoo remote, including threats, prior or subsequent defamations,subsequent statements of the defendant, circumstances indicatingthe existence of rivalry, [and] ill will, or hostility betweenthe parties”). IV APPLICATION OF LAW TO FACTS A. Form of Jury Charge Plaintiffs sought to have the jury instructionsdivided into separate counts to reflect each of the seven allegedlydefamatory statements appearing in the three newspaper articles.Defendants resisted this effort, insisting on the form usedby the district court, posing three questions – one for each article.See Part II.D, supra. The defendants took this positioneven after the district court indicated that only one statementneeded to be libelous for the jury to find against defendantswith respect to a given newspaper article. Because defendants accepted and arguedin support of this structure for the jury verdict, a jury findingof libel as to a newspaper article will be sustained so long asat least one statement in the article is libelous. A. Single Instance Rule As a matter of law the single instanceexception is not applicable to the challenged statements. Defendantscannot gain the benefit of the single instance rule’s assumptionthat plaintiffs have suffered no harm where, as here, multiplestatements, each referring to a different mistake or error, arepublished in a closely related series of articles. The challenged statements appeared intwo consecutive issues of the Filipino Reporter. Giventhis temporal proximity, an average reader probably would notevaluate them in isolation, but would consider them together toconclude that plaintiff Celle had repeatedly indulged in unprofessionalconduct. See, e.g., November v. Time, Inc., 194N.E.2d 126, 128-29 (N.Y. 1963). Such a conclusion would affecthis professional reputation within the Metropolitan Filipino-Americancommunity. A. First Article 1. Defamation Two statements in the first newspaperarticle are challenged as defamatory. The first is the sub-headlineof the article which states that a “US judge finds Celle’negligent.’” The second is a statement which misquotes theTy opinion: “Moreover, [the judge] said, Ty claimed thatshe did not owe RMN (Radio Mindanao Network) money for advertisementsand ‘therefore Celle’s statements implying that she failedto pay her debts to RMN were false.‘” (emphasis added).Although the emphasized portion of the second statement appearsin the Ty opinion, it is not a ruling of the court but merelya quotation lifted from the complaint. Plaintiffs claim that,as it appears in the article, the statement creates the falseimpression to an average reader that the emphasized portion isactually attributable to the judge as a legal ruling rather thanmerely as an accusation made by Ty. The district court correctly concludedthat both statements were defamatory per se. The sub-headlinestating that “US judge finds Celle negligent” has onlyone meaning, namely that plaintiff has been found to have libeledMs. Ty. As a news commentator in a tightly-knit ethnic community,plaintiff Celle’s professional reputation would turn in largemeasure on the community’s faith in the accuracy and fairnessof his reporting. The statement that a United States judge hasfound plaintiff negligent for spreading false information wouldleave readers with the conclusion that he abused his positionas a news commentator. Cf. November, 194 N.E.2dat 128 (“The casual reader might not stop to analyze, butcould easily conclude that plaintiff is a crook and let it goat that.” (internal quotation marks and citations omitted)). The second statement is defamatory perse because it impugns plaintiff Celle’s trustworthiness. As writtenit would lead an average reader to believe that the judge in theTy matter found Celle made “false” accusations aboutTy’s financial obligations. Considered in the context of the entirearticle – part of which states that Celle threatened to call Tynumerous derogatory terms unless she met her financial obligationsto him – it would cause listeners and advertisers of Radyo Pinoywho read the article to question Celle’s professional integrity. 2. Falsity A review of the Ty opinion establishesthat both defamatory statements in the first article are false.The judge, ruling on a motion for summary judgment, did not findCelle negligent. Nor did he find that Celle had made false statementsregarding Ty’s debts to Radyo Pinoy. 3. Actual Malice Plaintiff introduced sufficient circumstantialevidence to establish clearly and convincingly that defendantPelayo entertained serious doubts about the truth of the headline”US judge finds Celle ‘negligent.’” This conclusionis based in part on evidence indicating ill will and personalanimosity between Celle and Pelayo at the time of publication. As noted earlier, the ill will originatedin part from several newspaper articles Celle authored detailinga criminal conviction of Pelayo’s daughter. Pelayo believed thatat least one of these articles made a “legal error in theterm of the criminal conviction,” erroneously alleging thathis daughter had been convicted of theft instead of the lessercrime of possession of stolen property. A reasonable juror – consideringthe ill will, and the factual similarity between the basis forthat ill will and the publication of the challenged statementhere – could conclude that Pelayo was imposing in-kind retributionon Celle by exaggerating the status of the legal proceedings againsthim. In addition, a fair assessment of Pelayo’sown testimony casts doubt on whether at the time of publicationhe believed the sub-headline stating that Celle had been foundnegligent. For instance, Pelayo admitted that the lead headlineand the body of the article are on their face at odds withthe sub-headline which stated Celle was found negligent. He testified:

Well, if you go through the entire context of the story, counsel,the headline itself says in bold letters that the libel case isgoing to a jury, and that alone [sic] presumption that there hasbeen no finding as to guilt or not guilt of the plaintiff.

Though defendant Pelayo testified thathe did not doubt the accuracy of the sub-headline, his subsequenttestimony as to the alleged basis for this belief suggests otherwise.See Schiavone Constr. v. Time, Inc., 847 F.2d 1069,1090 (3d Cir. 1988) (“[O]bjective circumstantial evidencecan suffice to demonstrate actual malice. Such circumstantialevidence can override defendants’ protestations of good faithand honest belief that the report was true.”). The trialtranscript reads:

[Defendants' Counsel]: What is the basis for that belief in thetruth [of the article], Mr. Pelayo?

[Pelayo]: As I read the decision at that time . . . [of writingthe story], there was a portion there that said that the elementof negligence could be found on the basis of the testimonyand evidence related in the case. (emphasis added).

In further testimony Pelayo admitted that at the time he wrotethe article he understood no decision had been reached on Celle’snegligence:

[Defendants' counsel]: And you added [to the column], “Thecase will go to the jury sometime next month or June, dependingupon the court calendar, or they may decide to settle out of court.”What was the purpose of that?

[Pelayo]: That indicates, counsel, that the case has not beendecided one way or the other.

[Defendants' counsel]: So that erases anyone’s impression thatsuit [sic], having a U.S. Judge finding Celle negligent, is thatwhy you did not print a retraction?

[Pelayo]: Yes, counsel.

A reasonable juror, hearing that exchange,could conclude that defendant Pelayo actually understood at thetime of the writing that no determination of negligence had actuallybeen rendered. Cf. Restatement (Second) of Torts,supra, � 580A cmt. d, at 219 (“Under certaincircumstances evidence [of a refusal by a publisher to retracta statement after it has been demonstrated to him to be both falseand defamatory] … might be relevant in showing recklessnessat the time the statement was published.”). Having foundthat the sub-headline in the first article is based on sufficientevidence for a jury verdict of libel, there is no need to analyzethe remaining statement. D. Second Article 1. Defamation For purposes of determining whetherthe statements in the second and third articles are susceptibleof a defamatory construction, the two articles should be readtogether. As already discussed, the New York Court of Appealsrequires that statements be construed in the context of the publicationas a whole as an average reader would read and consider them.See, e.g., November, 194 N.E.2d at 128 (“Ifevery paragraph had to be read separately and off by itself plaintiffwould fare pretty well. But such utterances are not so closelyparsed by their readers . . . and their meaning depends not onisolated or detached statements but on the whole apparent scopeand intent.”). The third challenged article appeared directlyunder the second article in the same issue of the FilipinoReporter. That the defendants intended for the two articlesto be read together is confirmed by the transitional opening ofthe third article: “In another development, AT&Tis . . . .” (emphasis added). A casual reader no doubt wouldread and consider these articles together. Two statements form the core of plaintiffs’libel claim with respect to the second article. The first statementreads: “Alarmed by dwindling listeners, advertisers and anongoing lawsuit, a controversial New Jersey based radio announcerlast week took a last-ditch desperate act by scaring outlets withlawsuits if they distributed copies of The Filipino Reportercontaining a factual report of a court decision rejecting hismotion to dismiss a $5 million defamation suit slapped againsthim.” (bold in original). The second statement reads: “Storeoutlets throughout the metro New York and New Jersey area ignoredthe black propaganda of Celle and his cohorts . . . .” The statement that Celle was “[a]larmedby dwindling listeners, [and] advertisers,” and was thustaking a “last-ditch desperate act,” when read in thecontext of the third article’s claim that AT&T is “withdrawingits sponsorship of Radyo Pinoy” casts significant doubt onthe economic viability of Radyo Pinoy. Cf. Restatement(Second) of Torts, supra, � 573 cmt c., illus.5. This is defamatory per se. Because the statement may be subjectto other meanings, all of which may not be defamatory, the courtdefers to the jury’s finding that the statement was defamatoryas it would likely be understood by the “ordinary and averagereader.” James v. Gannett Co., 353 N.E.2d 834, 837-38(N.Y. 1976). With respect to the accusation thatCelle was spreading “black propaganda,” it is not possibleon this record to determine if it carries a defamatory meaning.Plaintiffs failed to identify a plausible defamatory meaning ofthe phrase in the context in which it is used. For example, oneof plaintiffs’ witnesses testified that “black propaganda”is “racist” propaganda. Plaintiff Celle posited a differentmeaning, testifying that “black propaganda” means “disseminatingfalse information about someone.” Neither of these definitionsfits, given the context of the articles. The articles neitherallude to racist statements made by Celle nor do they suggestthat Celle spread “false information” to the local sellersof the Filipino Reporter. Furthermore, plaintiffs’ ownwitness testified that “black propaganda” is not a “commonlyuse[d]” term in the Metropolitan Filipino-American community,thus suggesting that it does not carry a unique cultural meaningwith a defamatory connotation. Moreover, in the absence of plaintiffsadvancing a reasonably precise and unambiguous meaning, it isnot possible to determine whether the statement is protected opinionunder New York’s constitution. See Steinhilber v. Alphonse,501 N.E.2d 550, 554 (N.Y. 1986) (distinguishing fact from opinionrequires consideration of “whether the specific languagein issue has a precise meaning which is readily understood orwhether it is indefinite and ambiguous”). 2. Falsity Scrutinizing the record with respectto the challenged statements in article two leads to the conclusionthat the plaintiff did not establish falsity either by a preponderanceof the evidence or by clear and convincing proof. With respectto the first challenged statement, evidence supporting falsityconsisted of nothing more than the following exchange:

[Plaintiffs' attorney]: I would like to ask you, true

or false, at the time this article was written, did your radiostation have dwindling listeners and advertisers?

[Celle]: No.

[Plaintiffs' attorney]: True or False?

[Celle]: False.

While a bland cryptic claim of falsitysupported by the credibility of a witness might be sufficientto establish a proposition in other civil cases, the First Amendmentdemands more. See Liberty Lobby, Inc. v. Dow Jones &Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988) (“Where thequestion of truth or falsity is a close one, a court should erron the side of non-actionability.”). To accept such a colorlessdenial as sufficient proof would effectively shift plaintiffs’burden of establishing falsity onto media defendants to establishtruth. This shift would impermissibly chill expression since “would-becritics of official conduct may be deterred from voicing theircriticism, even though it is believed to be true and even thoughit is in fact true, because of doubt whether it can be provedin court or fear of the expense of having to do so.” PhiladelphiaNewspapers, Inc. v. Hepps, 475 U.S. 767, 772-73 (1986) (quotingNew York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)). This conclusion is bolstered by a recognitionthat plaintiffs such as Celle can be expected to have easy accessto additional proof of falsity. At a minimum, Celle should havelaid a foundation for his bald assertion of falsity. For example,he could have discussed the advertising trends at Radyo Pinoy.He also could have introduced evidence detailing advertising volumeor gross advertising sales for the period leading up to the secondarticle without revealing proprietary information in a damagingway. Likewise, the challenged statement regarding”black propaganda” – even assuming the court could gleana defamatory meaning which is not protected opinion – was insufficientlyestablished as false. Again, the only evidence plaintiffs advancedto establish falsity was a cryptic denial consisting of the followingexchange:

[Plaintiffs' attorney]: Is [the statement regarding black propaganda]true or false?

[Celle]: That is false, sir.

Celle’s benign denials, in the absence of at least foundationtestimony or extrinsic evidence, are not sufficient to satisfythe constitutional requirement that a public figure establishfalsity. Cf. Philadelphia Newspapers, 475 U.S. at778 (“We recognize that requiring the plaintiff to show falsitywill insulate from liability some speech that is false, but unprovablyso.”).

Having failed to identify a statementin the second article that is a defamatory falsehood, plaintiffsdid not establish that the second article is libelous. Accordingly,this portion of the jury verdict cannot stand. E. Third Article 1. Defamation Three statements form the basis forplaintiffs’ claims with respect to the third article. The firststatement reads in pertinent part, “AT&T is reportedlywithdrawing its sponsorship of Radyo Pinoy when its contract expiresin July.” The second statement declares, “AT&T isreportedly being shortchanged of its allotted time slot.”The third statement is, “Critics of Radyo Pinoy claim theycould not get the frequency even in nearby areas such as JerseyCity.” The district court correctly concludedthat the three challenged statements are defamatory per se. Readas a whole, the first two challenged statements imply that AT&Tis “withdrawing its sponsorship of Radyo Pinoy” in partbecause it “is being shortchanged” by Celle. This clearlyattacks his trustworthiness as a businessperson. Celle’s professional integrity is alsochallenged by the statement that Radyo Pinoy’s radio frequencycould not be picked up in Jersey City. He marketed the side-bandradios to the Metropolitan Filipino-American community on theimplied promise that purchasers could receive Radyo Pinoy’s signal.Though the sale of side-band radios was not expressly addressedin the article, it was “presumably known” by the averagereader in the Metropolitan Filipino-American community given thatRadyo Pinoy only broadcast on a side-band frequency. SeeHinsdale v. Orange County Publications, Inc., 217 N.E.2d650, 653 (N.Y. 1966) (“[A] fact not expressed in the newspaperbut presumably known to its readers is part of the libel.”).In suggesting that purchasers could not receive the signal – presumablythe very reason for the purchase – the article portrays Celleto be a cheat. See, e.g., Van-Go Transport Co., Inc.v. New York Bd. of Educ., 971 F. Supp. 90, 98 (E.D.N.Y. 1997)(“Reputational injury to a person’s business, or to a company,consists of a statement that either imputes some form of fraudor misconduct or general unfitness, incapacity, or inability toperform one’s duties.”). 2. Falsity Plaintiffs sufficiently establishedthe falsity of the defamatory statements in the third article. With respect to the accusation that”AT&T is reportedly withdrawing its sponsorship of RadyoPinoy” after having been “shortchanged of its allottedtime slot,” a reasonable juror evaluating the evidence couldfind – by both a preponderance of the evidence and by clear andconvincing proof – that those statements were false. Celle sworethat AT&T was not withdrawing its sponsorship of Radyo Pinoyand that AT&T was not being shortchanged on advertising time.He also testified that AT&T had never complained to RadyoPinoy that it was being shortchanged. Finally, he testified thatAT&T continued advertising with Radyo Pinoy, a matter whichwas not contested. Plaintiffs established that Radyo Pinoy’ssignal could be picked up in Jersey City. Celle testified thatthe station had never received complaints from listeners claimingthey could not receive the signal in Jersey City. A resident ofJersey City testified on behalf of the plaintiffs that he couldreceive Radyo Pinoy’s signal in Jersey City. 3. Actual Malice Clear and convincing evidence supportsthe jury finding that Pelayo entertained serious doubt as to thetruth of the allegation that AT&T “was withdrawing itssponsorship of Radyo Pinoy” in part because it was being”shortchanged of its allotted time slot.” Defendants’ sole source for the storywas an official at AT&T who appears not to have been involvedwith the account at the time the article was written and who hadin fact moved to California. The official’s lack of current knowledgesuggested a reasonable basis for defendants to question the accuracyand reliability of the information he provided. Nonetheless, Pelayodid not investigate the accuracy of the story. Considering theevidence of ill will Pelayo felt towards Celle, a reasonable jurorcould conclude that Pelayo knowingly and recklessly ignored theprobable falsity of the story and printed it. See St.Amant v. Thompson, 390 U.S. 727, 732 (1968) (“[R]ecklessnessmay be found where there are obvious reasons to doubt the veracityof the informant or the accuracy of his reports.”); Perkv. Reader’s Digest Ass’n, Inc., 931 F.2d 408, 411 (6th Cir.1991) (in analyzing whether failure to investigate provides circumstantialevidence of recklessness to satisfy the actual malice standard,”this Court must look at each source to determine whetherit was reliable and whether it indicated that more research wasrequired to determine what the truth was”); Babb v. Minder,806 F.2d 749, 755 (7th Cir. 1986) (“[R]eckless conduct maybe evidenced in part by failure to investigate thoroughly andverify the facts . . . particularly where the material is peculiarlyharmful or damaging to the plaintiff’s reputation or good name.”(internal quotation marks and citation omitted)). The finding of actual malice is bolsteredby Pelayo’s conflicting testimony about the basis for the accusationthat AT&T was being shortchanged. Pelayo initially suggestedthat he was informed by the official at AT&T that it was beingshortchanged. He then stated that the official “did not saythat” to him. Cf. Zerangue v. TSP Newspapers, Inc.,814 F.2d 1066, 1071 (5th Cir. 1987) (“When the only ‘source’of a story did not contain the statements supposedly derived fromit, the courts have inferred that defendant recklessly fabricatedthe story.’”). This divergence is particularly striking becausePelayo appears to have been intimately involved with the article.The testimony demonstrates that Pelayo either authored parts ofthe article, or that he was an indirect source for a substantialportion of the article and in fact reviewed it before it was printed.Nonetheless, he was unable to identify the original source ofthis specific statement or to indicate who had written it. Inlight of these circumstances, a reasonable juror could infer actualmalice by clear and convincing evidence. Cf. St. Amant,390 U.S. at 732 (“The defendant in a defamation action broughtby a public official cannot . . . automatically insure a favorableverdict by testifying that he published with a belief that thestatements were true.”); Zerangue, 814 F.2d at 1070(“Although the defendant’s state of mind [regarding actualmalice] is a subjective fact, it can be shown by indirect or circumstantialevidence. Sufficient indirect evidence of actual malice candefeat a defendant’s unsupported statement that he did act ingood faith.” (citation omitted) (emphasis added)). Having concluded that at least one statementin the third article was libelous, it is unnecessary to delveinto the remaining statement. The jury properly found that thedefendants libeled plaintiffs in the third article. F. Punitive Damages Plaintiffs introduced sufficient proofof ill will and spite to sustain the award of punitive damagesdespite the reversal of the libel finding with respect to thesecond article. Evidence included testimony that Celle and Pelayodirected competing media outlets. It also included Pelayo’s testimonyalleging that Celle had earlier published erroneous articles onhis daughter’s criminal conviction. This history of animosityprovided strong evidence that Pelayo acted with ill will and spiteto deliberately injure Celle’s professional reputation withinthe Metropolitan Filipino-American community by publishing thelibelous articles. In light of the reversal on the secondarticle, however, the punitive damage award is excessive. It maypunish speech that is constitutionally protected. Ordinarily theissue of punitive damages would be remanded to the trial courtfor consideration of the appropriate amount of reduction or fora new trial. Here the interests of justice, and the avoidanceof unnecessary expensive and repetitive litigation, support theexercise of appellate remittitur authority to proportionally reducethe award to $10,000. Cf. Buckley v. Littell, 539F.2d 882, 897 (2d Cir. 1976) (reducing punitive damages and decliningto remand punitive damages issue for retrial despite overturningone of multiple jury findings of libel). If plaintiffs do not accept the remittitur,the district court shall vacate the punitive damage award andretry either the punitive damage issue, or the entire case. See,e.g., Hetzel v. Prince William County, 118 S.Ct. 1210,1211-12 (1998) (per curiam) (Court of Appeals’ order “requiringthe District Court to enter judgment for a lesser amount thanthat determined by the jury without allowing [plaintiff] the optionfor a new trial, cannot be squared with the Seventh Amendment.”);Fed.R.Civ.P. 50(d) (“If the appellate court reverses [thedenial of a motion for judgment as a matter of law], nothing inthis rule precludes it from determining that the appellee is entitledto a new trial, or from directing the trial court to determinewhether a new trial shall be granted.”); Sack on Defamation,supra, � 10.5.4, at 10-47 (trial or appellate court”may grant a remittitur, where the plaintiff must eitheraccept a lower verdict or pursue a new trial”); see generallyJack H. Friedenthal, Mary Kay Kane, and Arthur R. Miller, CivilProcedure � 12.4 (1998) (3d ed. 1999); Charles Alan Wright,Arthur R. Miller, and Mary Kay Kane, 11 Federal Practice andProcedure � 2815 (2d ed. 1995). V. CONCLUSION A close review of the record in accordancewith First Amendment strictures reveals evidence sufficient torequire affirming the libel findings as to only the first andthird articles. The portion of the verdict and judgment concludingthat the second article is libelous is reversed. With respect to the damage awards, the$1 award of nominal damages is affirmed. In light of the reversalof the libel finding of the second article, the punitive damagesaward is conditionally remitted by $5,000. If plaintiffs do notaccept this remittitur, the district court shall vacate the punitivedamage award and retry either the punitive damage issue or, inits discretion, the entire case. AFFIRMED in part and REVERSED in part.REMANDED to the District Court with instructions.

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Jacobs, CircuitJudge, dissenting from the majority opinion:

I respectfully dissent. Although I acceptmany of the stated premises of the majority opinion, and someof the holdings, I must disagree with the ultimate analysis andthe result. Thus I agree with the majority that”the elements of a libel action are heavily influenced bythe minimum standards required by the First Amendment,” anteat [19-20]; that the plaintiffs here are public figureswho are required to demonstrate actual malice, see anteat [22-23]; that the statements in the various articlesare potentially defamatory, see ante at [49-50,54-57]; and that where (as in this case) the libel defendantsresist a jury charge that requires the jury to consider the allegedlibels statement-by-statement within each publication (here withineach article), and instead insist upon a jury finding of libelas to each publication, liability is properly sustained as toeach publication if any one statement within it is actionable,see ante at [46-47]. Finally, I agree thatthe evidence of falsity is insufficient to support the jury findingof liability as to the second of the three articles at issue.See ante at [57-60]. A Because constitutional interests mandatethat protected speech not be suppressed by libel lawsuits, publicfigures may recover libel damages only upon a showing that allegedlylibelous statements were “made with ‘actual malice’–thatis, with knowledge that it was false or with reckless disregardof whether it was false or not.” New York Times Co. v.Sullivan, 376 U.S. 254, 279-80. Here, because we hold that the plaintiffsfailed to prove that the challenged statements in the second articlewere false, there can be no doubt that those statements are protectedspeech. In light of that conclusion, I agree with the majority’sremittitur of the punitive damages award (assuming of course thatthere is a compensatory damages award, or nominal one, that canproperly furnish a predicate for punitive damages). The most dangerous error of the majorityopinion is to affirm the damage award–which was entered on anundifferentiated jury finding of actual malice as to all threearticles–notwithstanding our unanimous rejection of the liabilityfinding as to the second article. A plaintiff seeking damagesresulting from both constitutionally protected and unprotectedspeech may recover only those damages arising out of speech thatis unprotected. See NAACP v. Claiborne Hardware Co.,458 U.S. 886, 915-30 (1982); cf. Gertz v. Robert Welch,Inc., 418 U.S. 323, 342-50 (1974) (limiting discussion ofwhen libel damages may be awarded to instances in which defamatoryfalsehoods have been proven). At this point, however, no one cansay whether the damage award is solely attributable to one orboth of the articles as to which the actual malice finding issustained, or whether the damage award is solely attributableto the article now unanimously held to contain constitutionallyprotected speech. Since plaintiffs can recover a libel award onlyif the speech is unprotected, and since that showing cannot bemade on this record, I would reverse the judgment on damages,and let the punitive damages award fall with it, or alternativelyremand for a new trial. The effect of the majority opinion isto affirm a libel award that (for all the record shows) may beattributable to constitutionally protected speech. Although itis true that the punitive damages award is the subject of remittiturand the remaining financial stake in this case is a one-dollarnominal damages award, that one dollar is (so far as I can tell)the first dollar in libel damages held on appeal to be payableby a journalist without regard to whether what was said is constitutionallyprotected. For that reason I fear that this is an important caseand that the majority’s error is a subversive one. B The majority opinion duly recites theprinciple that judges have a constitutional obligation to conductan independent examination of the record to ascertain whetherthere is adequate support for a jury’s finding of actual malice.See ante at [44-45]; see alsoBose Corp. v. Consumers Union of United States, Inc., 466U.S. 485, 514 (1984) (“Appellate judges . . . must exerciseindependent judgment and determine whether the record establishesactual malice with convincing clarity.”). The majority alsorecites the principle that any subsequent finding of actual malicemust be supported by proof that is clear and convincing. Seeante at [43]. With respect, I must say that the majorityopinion recites the duty of independent examination without performingit. The majority opinion holds only that the evidence is sufficientto convince a reasonable juror, [FOOTNOTE 1]but fails to recognize that evidence sufficient to convince areasonable juror is here not enough to “cross the constitutionalthreshold that bars the entry of any judgment that is not supportedby clear and convincing proof of ‘actual malice.’” Bose,466 U.S. at 511; see also id. at 501 (“[T]herule of independent review assigns to judges a constitutionalresponsibility that cannot be delegated to the trier of fact,whether the factfinding function be performed in the particularcase by a jury or by a trial judge.”). Under the independent review requiredby law and prudence, I conclude that the liability findings asto the first and third articles are unsupportable under applicableprinciples of law. C All of the challenged statements inthe first article are reportage on a legal opinion rendered byJudge Mukasey in one of the underlying litigations. The sub-headline,which the majority opinion deems actual malice, says, “USjudge finds Celle ‘negligent.’” The body of the first articlerepeats that observation, adding that the procedural act was the”dismiss[al]” of Celle’s summary judgment motion. Theremaining statement at issue in the first article is a quotationfrom Judge Mukasey’s opinion that describes a claim being assertedby one of the parties. The majority opinion evaluates thesestatements by setting forth an excerpt from the trial transcriptand concluding that “[a] reasonable juror, hearingthat exchange, could conclude that defendant Pelayo actually understoodat the time of the writing that no determination of negligencehad actually been rendered.” Ante at [53] (emphasisadded). I do not think that this excerpt can support a findingof actual malice. The record shows that the challenged passagesfrom the first article are a non-lawyer’s mistaken, careless interpretationof a judicial opinion governed by relatively complex proceduralrules. Such a mistake does not establish actual malice. See,e.g., Time, Inc. v. Pape, 401 U.S. 279, 289-92 (1971)(finding that deliberate omission of the word “allegation”or its equivalent in an article describing a government report,while erroneous, was insufficient to create a jury issue regardingactual malice); Suozzi v. Parente, 616 N.Y.S.2d 355, 359(1st Dep’t 1994) ( holding that “misinterpretation of a sourceor the resolution of an ambiguity adversely to the plaintiff orin accordance with a particular political view” does notconstitute actual malice). The challenged statements in the thirdarticle are that “AT&T is reportedly withdrawing itssponsorship of Radyo Pinoy when its contract expires in July”;that “AT&T is being shortchanged of its allotted timeslot” by Radyo Pinoy; and that “[c]ritics of Radyo Pinoyclaim” that they cannot receive its signal even in nearbyareas. With respect to the last statement, the majority opiniondeclines to reach whether the statement was made with actual malice.[FOOTNOTE 2] With respect to the otherstatements, the evidence at trial shows only that Pelayo reliedon a dubious source and failed to investigate the story fullywhen he made these statements. Pelayo talked to only one officialat AT&T, and that source was no longer involved with the RadyoPinoy account. Pelayo also gave conflicting testimony about whetherthat official, or someone else, told him that AT&T was beingshortchanged. These shortcomings also do not establish actualmalice. “[T]he failure to investigate [a statement's] truth,standing alone, is not enough to prove actual malice even if aprudent person would have investigated before publishing the statement.”Sweeney v. Prisoners’ Legal Servs., Inc., 622 N.Y.S.2d896, 899 (1995); see also St. Amant v. Thompson,390 U.S. 727, 733 (1968) (“Failure to investigate does notin itself establish bad faith.”). More particularly, relianceon biased sources, or failure to investigate when bias is revealed,is insufficient to establish actual malice. See Loebv. New Times Communications Corp., 497 F. Supp. 85, 92-93(S.D.N.Y. 1980). D For the reasons stated above, actualmalice cannot be shown in the first article solely on the basisof a layman’s confused reporting of a legal proceeding, and actualmalice cannot be shown in the third article solely on the basisof an untalented reporter’s reliance on dubious sources. All thatis left to support the majority’s holding of liability with respectto the first and third articles is that both articles were publishedin an atmosphere of spite and ill will between the parties. It is hornbook law, however, that spiteand ill will are simply not enough to establish actual maliceas the motive for erroneous reporting. See Harte-HanksCommunications, Inc. v. Connaughton, 491 U.S. 657, 666 &n.7 (1989) (“[T]he actual malice standard is not satisfiedmerely through a showing of ill will or ‘malice’ in the ordinarysense of the term.”); Herbert v. Lando, 781 F.2d 298,307-09 & n.6 (2d Cir. 1986) (finding previous hostile statementsbetween parties, including “I’ll get you” and “I’lldestroy you,” insufficient to establish actual malice). “Inthe context of a libel suit, ‘actual malice’ simply does not meanill-will or spite. . . . ‘Actual malice’ is now a term of arthaving nothing to do with actual malice.” Reliance Ins.Co. v. Barron’s, 442 F. Supp. 1341, 1349-50 (S.D.N.Y. 1977).We may not affirm unless we are confident that the evidence presentedat trial established that Pelayo published the statements “withknowledge that [they were] false or with reckless disregard ofwhether [they were] false or not.” New York Times Co.v. Sullivan, 376 U.S. 254, 279-80 (1964). The majority opinion recognizes thisprinciple, see ante at [42], but does notapply it. Thus, in respect of the first article, the majorityconcludes that “[a] reasonable juror–considering the illwill, and the factual similarity between the basis for that illwill and the publication of the challenged statement here–couldconclude that Pelayo was imposing in-kind retribution on Celleby exaggerating the status of the legal proceedings against him.”Ante at [51]. In respect of the third article, themajority concludes that “[c]onsidering the evidence of illwill Pelayo felt towards Celle, a reasonable juror could concludethat Pelayo knowingly and recklessly ignored the probable falsityof the story and printed it.” Ante at [63]. I think it is dangerous to rely on illwill between the parties to save an otherwise insufficient findingof actual malice. Here the ill will is personal, but ill willcan also be based on politics (not to mention everything else).The holding of the majority opinion is that ill will combinedwith sloppy reporting, or with a non-lawyer’s confusion over ajudge’s ruling, will support a finding of actual malice. In myview, that goes some distance toward undoing New York Timesv. Sullivan. E I appreciate that the judgment at stakehere is a single dollar, and that my approach might require aremand for another trial over that trifling sum. But judicialeconomy is not a substantive principle of law, and while I donot suggest that the result reached by the majority is drivenby a reluctance to compel a new trial over a nominal award, Ithink it is fair for me to explain why I would impose that burdenon a busy district court in this case. In arriving at the result that may avoida retrial, the majority opinion unsettles a series of legal principles.By way of summary, the majority opinion allows a damage awardto stand even though it may punish constitutionally protectedspeech; it allows a finding of actual malice to be based on thekind of confused reporting of legal proceedings that is only toocommon when the lay press reports judicial acts, and on sloppysourcing and reporting, which is epidemic; and it allows the deficienciesof those proofs to be made up by evidence of some ill will. Hostility,however, is no offense against standards of journalism, and illwill is the mother’s milk of political reportage and opinion. I would resolve this case by holding(upon an independent review of the evidence) that actual malicewas not shown, and I would emphasize the observation set forthin the majority opinion that public figures–by definition–havethe public opportunity to rebut the falsehoods uttered againstthem. See ante at [22]. And, here, wherethe plaintiffs and defendants both have the ear of the same tightknitcommunity, the rigorous standards of actual malice may be appliedto defeat this claim without reputational damage on any matterplaintiffs wish to dispute in the public forum to which they haveopen access. :::FOOTNOTES::: *Senior District Judge Jack B. Weinstein, ofthe United States District Court for the Eastern District of NewYork, sitting by designation. FN1For example, with respect to the third article, the majority opinionanalyzes the evidence and concludes that “[i]n light of thesecircumstances, a reasonable juror could infer actual maliceby clear and convincing evidence.” Ante at [65] (emphasisadded); see also ante at [51-53] (discussingfirst article). FN2It was undisputed at trial, however, that the station could notbe heard without special equipment, about which the article wassilent.

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 1601 – August Term, 1998 (Argued: April 16, 1999 Decided: April 12, 2000) Docket No. 98-9250 LINO CELLE and RADIO MINDANAO NETWORK USA, INC., Plaintiffs-Appellees, - v.- FILIPINO REPORTER ENTERPRISES INC. and LIBERTITO PELAYO, Defendants-Appellants.

Before: JACOBS and STRAUB, Circuit Judges,and WEINSTEIN, Senior District Judge.*

Appeal from a judgment, following ajury trial, in the United States District Court for the SouthernDistrict of New York (Chin, J.), in favor of plaintiffswho alleged that they had been libeled by a series of newspaperarticles. Cf. Celle v. Filipino Reporter Enterprises,Inc., Civ. No. 97-3801, 1998 WL 85822 (S.D.N.Y. Feb. 27, 1998)(denying defendants’ motion to dismiss). Judgment affirmed in part and reversedin part. Remanded to the district court with instructions. Judge Jacobs dissents in a separate opinion.

JUDAH D. GREENBLATT, New York, NY (Greenblatt,Softness & Lesser, LLP, on the brief), for Plaintiffs-Appellees.

MICHAEL D. CARLIN, New York, NY for Defendants-Appellants.

WEINSTEIN, District Judge:

TABLE OF CONTENTS I INTRODUCTION 4II FACTS 7 A Parties 7 B Ty Litigation 8 C TheThree Articles 9 1 First Article 9 2 Second Article 10 3 ThirdArticle 11 D District Court Proceedings12 III LAW 16 A Choice 16 B Libel 19 1 Public Figures 20 2 Defamation 23 a Principles of Interpretation 23 b Defamatory Meaning 25 c Opinion 25 d Defamatory Per Se 28 e Single Instance Rule 32 3 Falsity 35 4 Actual Malice 39 5 Punitive Damages 45 IV APPLICATION OF LAW TO FACTS 46 A Form of Jury Charge 46 B Single Instance Rule 47 C First Article 48 1 Defamation 48 2 Falsity 50 3 Actual Malice 50 D Second Article 54 1 Defamation 54 2 Falsity 57 E Third Article 60 1 Defamation 60 2 Falsity 62 3 Actual Malice 63 F Punitive Damages 66 V CONCLUSION 68