New Life Center v. California Province ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THE NEW LIFE CENTER,
INCORPORATED,
Plaintiff-Appellant,
v.
JOSEPH FESSIO, S.J.; GUADALUPE
ASSOCIATES, d/b/a Ignatius Press;
No. 99-1658
PHILIP F. LAWLER; LESLEY PAYNE,
Defendants-Appellees,
and
THE CALIFORNIA PROVINCE OF THE
SOCIETY OF JESUS,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-98-1396-A)
Argued: April 6, 2000
Decided: August 16, 2000
Before WIDENER, TRAXLER, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Ferris Ridgely Bond, BOND, CONTE & NORMAN,
P.L.L.C., Washington, D.C., for Appellant. Marion Edwyn Harrison,
LAW OFFICES OF MARION EDWYN HARRISON, Falls Church,
Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant New Life Center, Inc. ("New Life") is an organization
that primarily provides therapy for members of the Roman Catholic
religious community. Appellee Ignatius Press ("Ignatius") publishes
a monthly magazine entitled The Catholic World Report ("CWR").
New Life filed a defamation action against Ignatius and various indi-
viduals associated with Ignatius and CWR as a result of a February
1997 CWR article. The district court dismissed the individual defen-
dants for lack of personal jurisdiction and thereafter granted summary
judgment in favor of Ignatius on New Life's defamation claim. New
Life appeals, and we affirm.
I.
New Life is a residential treatment center located in Virginia that
diagnoses and treats dysfunctional behavior in Catholic priests, semi-
narians, and "religious."1 Part of New Life's approach is to ensure that
priests "have adequate sexual development and a proper understand-
ing of relationships befitting a cleric," Brief of Appellant at 5, and
New Life therefore provides therapy addressing sexual disorders.
When New Life evaluates candidates for the priesthood, the evalua-
tion identifies any personality disorders, including those New Life
links to inappropriate sexual development.
_________________________________________________________________
1 The word "religious" appears as a noun throughout the record, and,
in that context, refers to members of a religious order, such as monks or
nuns. See Webster's Encyclopedic Unabridged Dictionary of the English
Language 1628 (1996).
2
New Life is run by Dr. Phillip Drummond, a psychologist, and Sis-
ter Carla Przybilla. Both Drummond and Przybilla regularly conduct
seminars and workshops for the religious community, many of which
address questions of sexuality and the clergy. Noting that "[s]exual
disorders and sexual improprieties of Clergy and Religious have been
given great publicity and notoriety in the past years," J.A. 277, New
Life presented workshops such as "Human Sexuality, Clerical and
Religious Issues in Relation to the Body, Mind and Spirit," which
included discussions of "The Gay Priest, Religious [M]an, The Les-
bian Sister--dealing with hetero- and homosexuality," J.A. 283, and
"Maturity, Psycho-Sexual, and Sexual Identity, Psycho-Social Devel-
opment," J.A. 294, which included discussions about "What to do
when the Formation director becomes involved sexually with a candi-
date?" and "What does the public want to know about a gay priest or
sister. Should he or she `come out of the closet?'" J.A. 294.
New Life publishes a quarterly newsletter that, according to Drum-
mond, reaches nearly every bishop and religious superior in the
United States. The newsletter explains that New Life's purpose is "to
provide therapeutic enhancement in a therapeutic community setting
to troubled and troublesome persons engaged in church ministry . . . .
Th[e] treatment component is designed for . . . persons manifesting
symptoms of dysfunctional behavior [and] persons suffering from
addictions--chemical, sexual, food." J.A. 312.
Appellee Lesley Payne, a freelance writer from California, sold to
Appellee Phillip Lawler, a Massachusetts resident, an article (the "Ar-
ticle") discussing three Roman Catholic treatment centers--New Life,
St. Luke Institute, and Villa St. John Vianney. Lawler is CWR's free-
lance editor and is under contract to Ignatius to provide the content
to be published in CWR eleven times a year. As was his usual prac-
tice, Lawler edited the Article and then e-mailed the Article and the
other content to Appellee Father Joseph Fessio, a Jesuit priest. Fessio,
a California resident, was at that point assigned by his religious order
to the University of San Francisco and was permitted to serve, on a
volunteer basis, as CWR's publisher. Fessio reviewed Lawler's sub-
missions from a theological perspective and made some inquiries
about the Article.
3
The Article, entitled "Salt for their Wounds," was published in
CWR's February 1997 edition and was prefaced by the following edi-
tor's note:
Much of this essay is based on reports which have been pro-
vided by men who have--rightly or wrongly--been
assigned to facilities set up to care for priests with emotional
problems. Because of the sensitivity of the material, and
because our witnesses are (again, rightly or wrongly) open
to challenge, CWR has not printed any charges which have
not been corroborated by at least one independent witness.
J.A. 498.
According to the Article, the treatment centers are nothing more
than "Church-run psychiatric gulag[s], usually operated by theologi-
cal liberals, often by men who are openly and actively homosexuals."
J.A. 498. Priests and seminarians who had been treated at the centers
claimed in the Article that counselors at the centers urged patients to
flout Church doctrine (particularly the Church's position on homosex-
uality) and ridiculed patients who expressed belief in or support for
Church theology and teachings. The Article suggested that New Life
and the other treatment facilities are used by the Roman Catholic
Church as a means of forcing conservative priests and seminarians out
of the ministry: "Some of these men were sent to treatment facilities
by their ecclesiastical superiors for evaluation of such `conditions' as
doctrinal `rigidity,' `compulsive' praying, and `homophobia,' and
returned with a diagnosis that they were `unfit for ministry.'" J.A.
498. Those patients who agreed with the liberal philosophy of the
counselors, however, were quickly returned to their parishes, even if
they had much more serious problems.
The portion of the Article devoted to New Life focused primarily
on Drummond's evaluation of seminary student Andrew Walter. The
Article stated that Walter received an unjustified, career-ending eval-
uation that diagnosed Walter as having a "severe sexual dysfunction,"
J.A. 498, and suggested that Walter might be a homosexual in denial.
The Article also accused the New Life Center of similarly derailing
the career of another seminarian named "Anthony," without indicating
that "Anthony" was a pseudonym. The Article suggested that homo-
4
sexual liaisons between patients were encouraged at New Life. It also
indicated that Drummond was unlicensed in Virginia and insinuated
that he was in violation of law.
Not surprisingly, Drummond was less than pleased with the Arti-
cle's treatment of New Life. He wrote several letters of complaint to
CWR, two of which were published in later editions of the magazine.
New Life filed several actions in state court against Ignatius, Fessio,
Lawler, Payne, and others, including this defamation action. The
defendants removed the action to federal district court on the basis of
diversity of citizenship.
The district court concluded that the Virginia "long-arm" statute
did not authorize service of process on Fessio, Lawler, and Payne (the
"individual defendants"). The district court therefore dismissed the
individual defendants for lack of personal jurisdiction. As to New
Life's claim against Ignatius, the court determined that New Life was
a limited-purpose public figure and thus was required to show that
any defamatory statements contained in the Article were made with
actual malice. The district court found no evidence tending to show
that Ignatius acted with actual malice, and the court therefore granted
summary judgment in favor of Ignatius.
II.
New Life contends the district erred when it concluded that New
Life was a limited-purpose public figure for purposes of its defama-
tion claim. New Life also contends that even if it is considered a pub-
lic figure, it presented sufficient evidence of actual malice to
withstand summary judgment.
In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964),
and its progeny, the Supreme Court held that in cases involving defa-
mation of public officials or public figures, the First Amendment
requires that the defendant be held liable only if the plaintiff proves
by clear and convincing evidence that the defamatory statements were
made with "actual malice." See, e.g., Milkovich v. Lorain Journal Co.,
497 U.S. 1, 14-15 (1990); Foretich v. Capital Cities/ABC, Inc., 37
F.3d 1541, 1551-52 (4th Cir. 1994). If the plaintiff is not a public offi-
cial or figure, then the actual malice standard does not apply when
5
determining liability, and the plaintiff "may recover such damages
under any applicable state-law standard except strict liability." Fore-
tich, 37 F.3d at 1552.
A.
Case law setting out the contours of First Amendment-driven defa-
mation law establishes that there are three types of public figures:
(1) "involuntary public figures," who become public figures
through no purposeful action of their own; (2) "all-purpose
public figures," who achieve such pervasive fame or notori-
ety that they become public figures for all purposes and in
all contexts; and (3) "limited-purpose public figures," who
voluntarily inject themselves into a particular public contro-
versy and thereby become public figures for a limited range
of issues.
Id. at 1551-52 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 345
(1974)). In this case, there is no evidence from which it could be con-
cluded that New Life has such "pervasive fame or notoriety" that it
could be considered an "all-purpose" public figure. Nor is there any
evidence from which it could be concluded that New Life is an invol-
untary public figure. See Gertz, 418 U.S. at 345 ("Hypothetically, it
may be possible for someone to become a public figure through no
purposeful action of his own, but the instances of truly involuntary
public figures must be exceedingly rare."); Wells v. Liddy, 186 F.3d
505, 539-40 (4th Cir. 1999) (requiring that an involuntary public fig-
ure must have "become a central figure in a significant public contro-
versy" and must have somehow "assumed the risk of publicity"), cert.
denied, 120 S. Ct. 939 (2000). The question, then, is whether New
Life can properly be considered a limited-purpose public figure,
which is a question of law for the court. See Wells, 186 F.3d at 531.
To determine whether a plaintiff in a defamation case is a limited-
purpose public figure, we engage in a two-part inquiry. "First, was
there a particular `public controversy' that gave rise to the alleged
defamation? Second, was the nature and extent of the plaintiff's par-
ticipation in that particular controversy sufficient to justify `public
figure' status?" Foretich, 37 F.3d at 1553 (emphasis in original); see
6
also Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681, 688 (4th Cir.
1989) ("[A] plaintiff should not be considered a limited-purpose pub-
lic figure absent the existence of a pre-defamation public controversy
in which the plaintiff has become directly involved.").
(1)
When determining the existence of a public controversy, it must be
remembered that not every issue of interest to the public can be con-
sidered a public controversy. See Time, Inc. v. Firestone, 424 U.S.
448, 454 (1976). Instead, a public controversy
must be a real dispute, the outcome of which affects the gen-
eral public or some segment of it in an appreciable way.
Essentially private concerns or disagreements do not
become public controversies simply because they attract
attention. Rather, a public controversy is a dispute that in
fact has received public attention because its ramifications
will be felt by persons who are not direct participants.
Foretich, 37 F.3d at 1554 (quoting Waldbaum v. Fairchild Publica-
tions, Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980)) (internal alterations
omitted).
As the district court noted, "[b]ehavioral disorders among the
clergy had emerged as a problem long [before the publication of the
Article] and had become a serious issue of public discourse in the reli-
gious community and beyond." J.A. 624. Of particular prominence
were cases involving the sexual abuse of children by priests. See, e.g.,
Servants of the Paraclete, Inc. v. Great Am. Ins. Co., 866 F. Supp.
1560, 1563-64 (D.N.M. 1994) (involving a dispute over insurance
coverage for settlements paid by a Roman Catholic treatment center
to 20 plaintiffs who claimed to have been sexually abused as children
by a priest being treated at the treatment center); Arthur Jones, Sexual
Abuse by Priests: The Unrelenting Crisis, Nat'l Cath. Rep., Mar. 3,
1995, available in 1995 WL 12420793 ("The`sustained crisis' - the
emergence of ever more victims of clergy sexual abuse - continues.");
Richard N. Ostling, Sex and the Single Priest , Time, July 5, 1993,
available in 1993 WL 2930465 ("After years in which the Vatican
downplayed the sex scandals that have plagued the Roman Catholic
7
Church in the U.S., John Paul II publicly acknowledged the enormity
of the problem."). The scandal prompted questions about the Roman
Catholic Church itself, with allegations that Church officials knew
about the behavior of many of the priests and simply closed their eyes
to the problem, transferred the offending priests to new parishes, or
otherwise covered up the problems. See Beth Wilbourn, Suffer the
Children: Catholic Church Liability for the Sexual Abuse Acts of
Priests, 15 Rev. Litig. 251, 252 (1996) ("The response of both the
Catholic Church and the legal system to these often horrific acts of
sexual abuse [by priests] has simply added insult to injury. Catholic
leadership, with what has been characterized as`programmed consis-
tency,' has reassigned priests to new parishes and tried to cover-up
instances of child molestation."). Clearly, a scandal that raised ques-
tions about the fitness of priests and the integrity of the Church itself
affected many more than those directly involved in any given inci-
dent, including other priests, members of the Roman Catholic faith,
and the public at large. See Sex-Abuse Scandal Erodes Church's
Credibility, Nat'l Cath. Rep., Mar. 24, 1995, available in 1995 WL
12421088 (describing crisis over sexual abuse by priests as "relent-
less, a grindstone steadily wearing away the church's credibility and
the confidence of ordinary Catholics in their clergy"); Laurie Good-
stein, New Mexico's Catholics Bearing Burden of Clergy Sex-Abuse
Cases, Wash. Post, Dec. 30, 1994, available in 1984 WL 2000009(noting that the Santa Fe archdiocese, at risk of bankruptcy because
of more than 100 sex-abuse cases pending against it, placed valuable
pieces of property for sale and entreated its parishioners to donate $1
million to a settlement fund). Thus, there can be no real dispute that
the controversy over the misconduct of priests, as well as the
Church's responsibility for the misconduct and its alleged cover-up,
is a "public controversy" as defined by Foretich.
New Life, however, contends that the Article addressed the quality
of treatment being given priests and seminarians and the qualifica-
tions of those providing the treatment. According to New Life, there
was no public controversy regarding these issues until the publication
of the Article. New Life therefore argues that the district court erred
by characterizing it as a limited-purpose public figure. See Hutchin-
son v. Proxmire, 443 U.S. 111, 135 (1979) ("To the extent the subject
of [the defamation plaintiff's] published writings became a matter of
controversy, it was a consequence of the [allegedly defamatory state-
8
ments]. Clearly, those charged with defamation cannot, by their own
conduct, create their own defense by making the claimant a public
figure."). We believe that New Life oversimplifies the nature and
scope of the controversy.
Questions about the effectiveness of the treatment provided to
offending priests was a significant aspect of the priest-misconduct
controversy from the very beginning. For example, many of the law-
suits against the Church and individual priests alleged that the abuse
occurred after the priest received treatment or even while the priest
was receiving treatment. See Doe 1-22 v. Roman Catholic Bishop of
Fall River, 509 N.W.2d 598, 599-600 (Minn. Ct. App. 1993); Mrozka
v. Archdiocese of St. Paul & Minneapolis, 482 N.W.2d 806, 809-10
(Minn. Ct. App. 1992); Wilbourn, supra, at 256-57.
In addition, Church officials and professionals treating the troubled
priests publicly advocated that, in many cases, the priests' inappropri-
ate urges could be controlled through intensive treatment and that
many priests could be safely returned to the ministry. See L.M. Loth-
stein, Can a Sexually Addicted Priest Return to Ministry After Treat-
ment? Psychological Issues and Possible Forensic Solutions, 34 Cath.
Law. 89, 102 (1991) (stating that priests who molest adolescents
rather than young children "have a good prognosis for treatment and
many, if not most, can be returned to active ministry when their disor-
der is treated"); Priests' Abuse Treatable, Say Psychiatrists, Boston
Globe, July 25, 1992, available in 1992 WL 3761585 ("[S]pecialists
said many offenders could be returned to active ministry so long as
the clergy and their supervisors accept lifelong restrictions and
follow-up care."); see also Canice Connors, The Moment After Suffer-
ing: Lessons from the Pedophilia Scandal, Commonweal, Oct. 21,
1994, available in 1994 WL 13177940; Gustav Niebuhr, A Place of
"Conversion" for Priests Who Abused Children , Wash. Post, Jan. 2,
1993, available in 1993 WL 2213770. Not surprisingly, however,
such views were not universally held. See Fran Ferder & John Heagle,
Clergy Pedophiles & Ministry: Another Perspective , America, Nov.
4, 1995, available in 1995 WL 12061815 ("Our own clinical experi-
ence tells us that . . . a diagnosed priest pedophile, even if he has been
cooperative and relatively successful in treatment, ought not to be
allowed to return to active priestly ministry in a pastoral setting.");
see also Bob Secter et al., Church Takes Risk on Forgiving[;] Some
9
Doubt Child-Abuser Priest Can Ever Be Cured, Chicago Trib., Oct.
15, 1995, available in 1995 WL 6256084. Thus, it is clear that, when
the Article was published, there existed a public controversy over the
quality and effectiveness of treatment for troubled priests, a contro-
versy that gave rise to the Article and to which the allegedly defama-
tory portions of the Article are sufficiently related.2
(2)
The next question that must be resolved is whether New Life is
properly considered a limited-purpose public figure in connection
with that controversy. To make that determination, we must examine
the nature and extent of the plaintiff's involvement in the controversy,
an examination that is guided by considering whether:
(1) the plaintiff had access to channels of effective commu-
nication; (2) the plaintiff voluntarily assumed a role of spe-
_________________________________________________________________
2 Although we do not believe that we need narrow the public contro-
versy inquiry any further, we note that there also existed a public contro-
versy regarding whether the procedures of one of the centers featured in
the Article were consistent with Catholic teachings, which was, of
course, the more specific focus of the Article. See Karen Ann Ballotta,
Comment, Losing its Soul: How the Cipolla Case Limits the Catholic
Church's Ability to Discipline Sexually Abusive Priests, 43 Emory L.J.
1431 (1994). A Pittsburgh priest who was suspended by his bishop and
evaluated by the St. Luke center appealed the bishop's decision to the
Vatican's Supreme Tribunal of the Apostolic Signatura, the highest body
to which the appeal could be taken under Catholic law. See id. at 1450-
51. The Signatura initially ordered the priest reinstated and rejected St.
Luke's evaluation of the priest, "characterizing the procedures employed
at St. Luke's as contrary to Catholic teaching." Id. at 1454; see also Ann
Rodgers-Melnick, Vatican Overrules Bishop on Removal of Accused
Priest, St. Petersburg Times, Mar. 27, 1993, available in 1993 WL
3842403) ("The [Signatura] side[d] with [the priest's attorney] . . . who
argued that the philosophy underlying St. Luke's Institute . . . was not
Christian and that the facility was unfit to evaluate a priest."). The Signa-
tura later reversed its decision and upheld the bishop's actions against the
priest. See Ann Rodgers-Melnick, Vatican Alters Rules for Disciplining
Priests, Pittsburgh Post-Gazette, Oct. 13, 1995, available in 1995 WL
9538120.
10
cial prominence in the public controversy; (3) the plaintiff
sought to influence the resolution or outcome of the contro-
versy; (4) the controversy existed prior to the publication of
the defamatory statement; and (5) the plaintiff retained
public-figure status at the time of the alleged defamation.
Wells, 186 F.3d at 534; see also Foretich, 37 F.3d at 1556; Reuber
v. Food Chemical News, Inc., 925 F.2d 703, 708-10 (4th Cir. 1991)
(en banc).
As to the first factor, we conclude that New Life had access to
effective channels of communication. New Life conducts numerous
seminars each year that provide frequent opportunities to refute the
charges made in the Article. Moreover, New Life publishes an
internationally-distributed quarterly newsletter described by Drum-
mond as "highly respected and sought-after," which has "many thou-
sands of readers including, but not limited to, every bishop and
religious superior in the United States and many foreign countries."
J.A. 601. In addition, Drummond, New Life's president, owns the
Plains Group, a publishing company. The Plains Group has published
books by Drummond and Przybilla, both of which were apparently
well received within the Catholic religious community. New Life's
access to these effective channels of communication make it more
able than a private individual to refute the defamatory charges, and
thus weighs in favor of the conclusion that New Life is a limited-
purpose public figure.3
The second and third factors--whether the plaintiff voluntarily
assumed a role of prominence in the controversy and sought to influ-
ence the resolution of the controversy--likewise indicate that New
Life is properly considered a limited-purpose public figure. Through
_________________________________________________________________
3 We find meritless New Life's argument that these channels of com-
munication are not effective because it cannot reveal confidential patient
information in the course of defending itself against defamatory charges.
To accept this argument would effectively prevent professionals such as
doctors and lawyers, who owe duties of confidentiality to their clients,
from ever being considered limited-purpose public figures. Moreover,
New Life can certainly defend its practices and the qualifications of its
staff without revealing confidential information.
11
its well-distributed newsletter and its many seminars, New Life pre-
sented itself as an expert on evaluating and treating various psycho-
logical problems and behavioral disorders suffered by priests, with
much of its emphasis on sexual problems. In a 1996 letter directed to
diocesan and other religious leaders, New Life trumpeted its services
for "troubled or troublesome persons engaged in church ministry,"
J.A. 335, and explained that it offered counseling and treatment for
those suffering from, among other things, "sexuality and celibacy
conflicts" and sexual addictions. J.A. 336. New Life claimed its treat-
ment was highly effective, noting that "[o]f the hundreds who have
gone through the center, . . . not one has had to return to therapy, and
no one is on psychotropic medication, and all of them are in full-time
ministry in Church or Church-related works." J.A. 338. New Life's
advertisements also describe Drummond as a "[n]ationally and inter-
nationally known researcher, lecturer and diagnostician," and Przy-
billa as "[n]ationally and internationally known for her work in
formation." J.A. 294.
This evidence belies New Life's contention that it was a mere edu-
cator that never sought to influence any controversy. Instead, the evi-
dence convincingly establishes that New Life voluntarily thrust itself
into the controversy regarding the treatment of priests with psycho-
logical or sexual disorders and that New Life sought to influence the
resolution of the controversy by promoting what it believed to be its
highly successful methods of treatment. While New Life may not be
well known to the public generally, it is by its own admission well
known and well respected within the hierarchy of the Roman Catholic
Church. Cf. Reuber, 925 F.2d at 709 ("Someone who has not attracted
general notoriety may nonetheless be a public figure in the context of
a particular controversy covered by publications of specialized inter-
est."). Accordingly, these factors also indicate that New Life is a
limited-purpose public figure with regard to the subject matter of the
Article.
The fourth and fifth factors--whether the public controversy
existed at the time of the alleged defamation and whether the plaintiff
retained its status as a public figure at the time of the defamation--are
easily resolved. As previously discussed, the public controversy
regarding the behavioral problems of priests and the treatment for
those problems existed at the time of the publication of the Article.
12
And the evidence in the record clearly establishes that New Life
retained its status as a public figure at the time the Article was pub-
lished, given that New Life continued promoting itself and its services
through its seminars, advertisements, and newsletters.
In sum, an evaluation of all the relevant factors indicate that the
nature and extent of New Life's involvement in the controversy sur-
rounding the sexual misconduct of priests and the proper treatment for
priests with sexual disorders is sufficient to warrant treating New Life
as a limited-purpose public figure in connection with that controversy.
See Reuber, 925 F.2d at 709 (finding scientist to be a limited-purpose
public figure and noting, among other things, that the scientist "de-
scribed himself as `eminent' in his field"); National Found. for Can-
cer Research v. Council of Better Bus. Bureaus, 705 F.2d 98, 102 (4th
Cir. 1983) (finding plaintiff to be a public figure because the plaintiff
"attempted, through various means at its disposal, to put itself and its
methods before the public"); Steaks Unlimited, Inc. v. Deaner, 623
F.2d 264, 272-74 (3d Cir. 1980) (finding that plaintiff who launched
an extensive campaign advertising its product was a limited-purpose
public figure). We therefore affirm the district court's conclusion that
New Life is a limited-purpose public figure.
B.
As a limited-purpose public figure, New Life can recover on its
defamation claim only if it establishes, through clear and convincing
evidence, that Ignatius acted with actual malice when making the
allegedly defamatory statements. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255-56 (1986) ("[W]here the factual dispute concerns
actual malice, clearly a material issue in a New York Times case, the
appropriate summary judgment question will be whether the evidence
in the record could support a reasonable jury finding either that the
plaintiff has shown actual malice by clear and convincing evidence or
that the plaintiff has not."). We agree with the district court that New
Life failed to create a genuine issue of fact as to the existence of
actual malice.
A defamatory statement is made with actual malice if it is made
"with knowledge that it was false or with reckless disregard of
whether it was false or not." New York Times , 376 U.S. at 279-80.
13
"[R]eckless conduct is not measured by whether a reasonably prudent
man would have published, or would have investigated before pub-
lishing. There must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts as to the truth of
his publication." St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
The plaintiff's burden in establishing actual malice is substantial,
requiring a showing of "conduct . . . so reckless. . . that it approaches
the level of publishing a knowing, calculated falsehood." Ryan v.
Brooks, 634 F.2d 726, 733 (4th Cir. 1980).
New Life first contends that the disclaimer at the beginning of the
Article shows that Ignatius had doubts about the accuracy of some of
the sources for the Article, thus establishing actual malice. We dis-
agree.
The disclaimer recognizes that, particularly when a controversial
subject is involved, many readers will question the reliability of
sources with a personal interest in the story; it in no way establishes
that Ignatius entertained serious doubts about the veracity of the
sources. If anything, the disclaimer indicates that Ignatius only pub-
lished allegations about which it did not have any serious doubts.
New Life simply presented no evidence from which it could be con-
cluded that Ignatius or the individual defendants doubted or had any
reason to doubt the reliability of their sources. Cf. St. Amant, 390 U.S.
at 732 (noting that actual malice may be shown "where there are obvi-
ous reasons to doubt the veracity of the informant or the accuracy of
his reports"); Wells, 186 F.3d at 543 (finding evidence of actual mal-
ice sufficient to overcome summary judgment motion where the
defendant acknowledged that his source had a history of mental ill-
ness and had "`difficultly differentiating between reality and non-
reality'"). Accordingly, we reject New Life's suggestion that the
Article's disclaimer can be considered evidence of actual malice.
To the extent New Life contends that actual malice can be inferred
from the failure of Fessio, Lawler, and Payne to adequately investi-
gate before publishing the Article, that argument also fails. The evi-
dence establishes that Payne researched the Article to her satisfaction
and in a manner that she believed was consistent with her responsibil-
ities as a journalist. At Fessio's request, Lawler confirmed with Payne
that there was an independent source for every charge made in the
14
Article. While Payne may not have asked every question that New
Life thinks she should have, and while New Life may complain about
how Ignatius confirmed the allegations,4 New Life's displeasure over
the manner in which the story was investigated simply cannot be
equated with evidence of actual malice. Because there is no evidence
in the record from which it can be inferred that Ignatius or the indi-
vidual defendants purposefully closed their eyes to the truth or enter-
tained serious doubts about the truth of the Article, New Life's
complaints about the nature of the investigation for the Article are
insufficient to withstand the motion for summary judgment. See
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657,
692 (1989) ("Although failure to investigate will not alone support a
finding of actual malice, the purposeful avoidance of the truth is in
a different category." (citation omitted)); Ryan, 634 F.2d at 734 ("As
long as the sources of the libelous information appeared reliable, and
the defendant had no doubts about its accuracy, the courts have held
the evidence of malice insufficient to support a jury verdict, even if
a more thorough investigation might have prevented the admitted
error.").
New Life further contends that actual malice can be inferred from
an incorrect statement contained in the Article. The Article stated that
Drummond diagnosed Andrew Walter with "severe sexual dysfunc-
tion." J.A. 498. Drummond's report, however, which Payne had when
she wrote the Article, diagnosed Walter as suffering from a "Psycho-
sexual Disorder Not Otherwise Specified." J.A. 773. New Life argues
that the knowing publication of a false diagnosis demonstrates that the
Article was published with actual malice.
_________________________________________________________________
4 New Life claims that the allegations were not truly verified by inde-
pendent sources because the "independent sources" merely repeated what
they had previously been told by the sources relied upon in the Article.
New Life's view that such a procedure is not a proper way to verify the
allegations does not give rise to an inference of actual malice. See
Church of Scientology Int'l v. Daniels, 992 F.2d 1329, 1334 (4th Cir.
1993) ("[A]ctual malice cannot be established merely by showing a
departure from accepted journalistic or professional practices."); cf. St.
Amant, 390 U.S. at 730 (concluding that actual malice cannot be estab-
lished by merely showing that the publisher relied on the unverified
statement of a third party).
15
The evidence in the record establishes that Fessio, in the course of
his review of the Article, sought input from a priest-psychologist
unconnected to the magazine. The priest reviewed the Article and
suggested changing the reference to the diagnosis to"severe sexual
dysfunction" to make the diagnosis sound less harsh. There is no evi-
dence suggesting that Fessio or Lawler believed the change was medi-
cally significant or that the altered diagnosis would reflect more
negatively on New Life and Drummond than would the actual diagno-
sis. Under these circumstances, the relatively minor (at least to a lay-
man) change in the diagnosis cannot give rise to an inference of actual
malice. See St. Amant, 390 U.S. at 731-32 (discussing the importance
of the defendant's good faith when determining whether a statement
was made with actual malice).
Finally, New Life argues that the "knowing failure" to identify in
the Article that a pseudonym was used for one of its sources is evi-
dence of actual malice. Given the complete absence of any evidence
tending to show that the defendants had any reason to doubt the reli-
ability or veracity of the source, we do not see how the failure to iden-
tify the use of a pseudonym can be considered evidence of actual
malice. See Church of Scientology, 992 F.2d at 1334 ("[A]ctual mal-
ice cannot be established merely by showing a departure from
accepted journalistic or professional practices.").5
Accordingly, we agree with the district court that New Life failed
to present evidence tending to show that the Article was published
with actual malice. We therefore affirm the grant of summary judg-
ment in favor of Ignatius on New Life's defamation claim.
_________________________________________________________________
5 In its summary of the arguments, New Life listed as additional evi-
dence of actual malice the failure "to retract an insinuation that New Life
was operating illegally without licensure." Brief of Appellant at 18. New
Life, however, did not develop this argument in the body of its brief nor
raise the issue at oral argument. The issue, therefore, has been aban-
doned. See 11126 Baltimore Blvd., Inc. v. Prince George's County, 58
F.3d 988, 993 n.7 (4th Cir. 1995) (en banc). New Life also listed in its
notice of appeal a challenge to the district court's order denying New
Life's motion to alter or amend the grant of summary judgment, but New
Life's brief includes no argument addressed to that order. New Life thus
has abandoned that issue as well.
16
III.
The district court concluded that it lacked personal jurisdiction
over the individual defendants because they could not be reached
under Virginia's long-arm statute. New Life challenges the dismissal
of the individual defendants in its brief.
To prevail on its claims against the individual defendants, New
Life would be required to present evidence establishing actual malice
on the part of the individual defendants. New Life conceded at oral
argument that if this Court found its evidence of actual malice on the
part of Ignatius to be insufficient, then it could not establish actual
malice on the part of the individual defendants, thus rendering moot
the dismissal of the individual defendants. Because we have rejected
New Life's evidence of actual malice, the personal jurisdiction ques-
tion is therefore moot.
IV.
For the foregoing reasons, the decision of the district court is
hereby affirmed.
AFFIRMED
17