Khawar v. Globe International, Inc.

Brief Fact Summary.

Khawar was a freelance photographer who was photographed near Kennedy by a friend shortly before Kennedy was assassinated. Twenty years later, publisher Roundtable Press alleged a conspiracy theory that the assassination was caused by the Iranian Shah working with the Mafia.

Globe International republished the same photograph in articles on the conspiracy, incorrectly identifying the purported assassin as Khawar. Khawar received threatening phone calls and death threats, and his home and son’s car were vandalized.

Synopsis of Rule of Law.

A finding of actual malice may be upheld if there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports and the republisher failed to interview obvious witnesses who could have confirmed or disproved the allegations or to consult relevant documentary sources.

Facts.

Khawar was a freelance photographer who was photographed near Kennedy by a friend shortly before Kennedy was assassinated. Twenty years later, publisher Roundtable Press alleged a conspiracy theory that the assassination was caused by the Iranian Shah working with the Mafia. The publisher’s book contained photographs of a young man identified as the purported “actual” assassin of Senator Kennedy.

Globe International republished the same photograph in articles on the conspiracy but added an arrow pointing to one of the men and identifying the purported assassin incorrectly as Khawar. After Khawar read the Globe article, he received accusatory and threatening phone calls, his children received death threats, and his home and son’s car were vandalized.

Khawar sued for defamation. Roundtable Press subsequently settled with Khawar and retracted its statements that Khawar was associated with Senator Kennedy’s assassination.

Issue.

1. When a published book places a person at the center of a public controversy, is that person an involuntary public figure for the limited purpose of a media report about that book and that controversy?
2. Does the First Amendment mandate a privilege for a media defendant’s publication of a neutral and accurate report about a controversial book’s allegations regarding matters of public concern?
3. Does the evidence support the jury’s special verdict finding of actual malice?
4. Does the evidence support the jury’s special verdict finding of negligence?
5. Did the trial court usurp the jury’s role and violate Globe’s right to due process of law when it determined the Globe article to be an “original libel” without giving Globe the opportunity to be heard or present evidence on that issue?

Held.

1. No. When a published book places a person at the center of a public controversy, that person is not an involuntary public figure for the limited purpose of a media report about that book and that controversy.
2. No. The First Amendment does not mandate a privilege for a media defendant’s publication of a neutral and accurate report about a controversial book’s allegations regarding matters of public concern.
3. Yes. The evidence supports the jury’s special verdict finding of actual malice.
4. Yes. The evidence supports the jury’s special verdict finding of negligence.
5. No. The trial court did not usurp the jury’s role and violate Globe’s right to due process of law when it determined the Globe article to be an “original libel” without giving Globe the opportunity to be heard or present evidence on that issue.

Discussion.

1. When a published book places a person at the center of a public controversy, is that person an involuntary public figure for the limited purpose of a media report about that book and that controversy?

An involuntary public figure is a person who, despite never voluntarily engaging the public’s attention to influence the outcome of a public controversy, as nonetheless acquired such public prominence in relation to the controversy as to permit media access sufficient to effectively counter media-published defamatory statements.

Here, the photograph was taken before the controversy arose, and any role in the political campaign was “trivial at best.”

2. Does the First Amendment mandate a privilege for a media defendant’s publication of a neutral and accurate report about a controversial book’s allegations regarding matters of public concern?

Under the neutral reportage privilege, the First Amendment mandates an absolute privilege for the republication of defamatory statements when a reasonable, prominent organization makes serious charges that are accurately and neutrally worded against a public figure. However, the Supreme Court has never weighed in on this theory, nor has it been settled whether the privilege ought to be recognized in California.

The Globe argued that the neutral reportage privilege should protect defamatory statements made about private individuals by public figures. The Court disagreed, finding it more persuasive that republications of accusations made against private figures should never be protected by the neutral reportage privilege, regardless of the status of the individual or entity making the accusations, because to hold otherwise might totally erode the Gertz distinction between private and public plaintiffs.

Here, because Khawar was a private figure, he need only have proven negligence and not actual malice to recover damages for actual injury to his reputation.

3. Does the evidence support the jury’s special verdict finding of actual malice?

When a finding of actual malice is based on the republication of a third party’s defamatory falsehoods, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient. Nonetheless, a finding of actual malice may be upheld if there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports and the republisher failed to interview obvious witnesses who could have confirmed or disproved the allegations or to consult relevant documentary sources.

Here, there were obvious reasons to doubt the accuracy of the accusations in the Roundtable book. The FBI and state prosecutorial agencies investigated the assassination thoroughly, resulting in a jury finding beyond a reasonable doubt of the actual assassin. The evidence at trial supports the jury’s implied finding that neither the Globe editor who wrote the article or any other Globe editors made any such effort to vet the article’s veracity.

[Issues 4 and 5 abrogated from the opinion.]