Ambiguity, emails key to upholding $650K libel verdict

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A $650,000 defamation verdict against a Myrtle Beach newspaper has been upheld after the South Carolina Court of Appeals ruled that an allegation published by the newspaper could be interpreted in either of two ways—one of which was defamatory to a local lobbyist.

David Wren, a reporter for The Sun News, wrote a series of articles about campaign contributions made to several candidates, including Gresham Barrett, who was then running for governor. Wren learned about a 2009 meeting at which Brad Dean, president of the Myrtle Beach Area Chamber of Commerce, delivered to Barrett about $84,000 in campaign contributions. Mark Kelley, a lobbyist, was present at the meeting, but did not deliver the contributions, which would have been a violation of state law.

Wren wrote three articles about the donations, discussing various aspects of the meeting that raised questions about the appearance of their propriety. The contributions came from various LLCs that had few assets and no revenue, but Wren suggested that they were actually donations from the chamber of commerce, routed through those companies.

About two years after the publication of the articles, Kelley sued Wren and Sun Publishing for libel. Horry County Circuit Court Judge Larry Hyman ruled that Kelley, as a former state legislator, was a public figure, which meant that Kelley would need to prove that the paper published false and defamatory statements about him with actual malice—that is, that the paper published them either knowing that they were false or with reckless disregard for the truth.

The jury ruled in Kelley’s favor, awarding him $400,000 in actual damages and $250,000 in punitive damages.

On appeal, the case swung largely on a single allegation in the series’ second article, in which Wren wrote that “Dean, along with chamber lobbyist Mark Kelley, delivered [the contributions].” Wren argued that the phrase “along with” merely conveyed that Kelley was present when Dean delivered the contributions. Kelley testified that he believed that the statement accused him of committing a crime by delivering the contributions himself. (Wren admitted at trial that he had no evidence that the money came from Kelley.)

A unanimous Court of Appeals panel found that the statement could be reasonably interpreted to mean that Kelley and Dean had delivered the contributions, and thus that Kelley had satisfied his burden of proving that the newspaper had made a false statement about him.

“In fact, we believe a person reading the [article] would be far more likely to interpret the statement as an allegation of illegal conduct by Kelley than a mere statement he was present,” Chief Judge John Few wrote for the court. “Therefore, the issue of whether Wren accused Kelley of committing a crime by delivering contributions was a question of fact for the jury.”

The court also found that Kelley had raised enough evidence of actual malice to send the case to the jury. Again, the court’s ruling hinged on Wren’s use of “along with” in his article. Since there was ample evidence that the allegation that Kelley delivered the contributions was false, the question for the court was whether Wren either knew or recklessly disregarded that he was making such an accusation.

To answer that, the court looked at emails that Wren wrote to some of his sources for the stories, in which Wren indicated that he believed that Kelley was in fact involved in delivering the contributions. The court said that while it was careful not to find actual malice based on the emails alone, the correspondence combined with the articles themselves enabled a jury to potentially infer that Wren made his statement with reckless disregard for how it might be read.

“In light of the fact that Wren so diligently pursued a story about Kelley making illegal campaign contributions—and found no evidence to support such a claim—we find it difficult to believe Wren did not recognize that including the clause ‘along with chamber lobbyist Mark Kelley’ in the second article would be read as an accusation against Kelley,” Few wrote.

Jim Stevens and Natalie Stevens-Graziani of the Stevens Law Firm in Loris represented Kelley. Jay Bender of Baker Ravenel & Bender in Columbia represented Wren and The Sun News.

Stevens-Graziani said that she had not come across a previous decision where an ambiguous statement, like the one at issue in Kelley’s case, was so central to its outcome. She said she thought that the jury’s ability to read the emails Wren sent helped tipped the case in his favor.

“That was a key discovery strategy on our part, and I think those emails were really the determining factor for the jury in terms of getting inside Wren’s head and understanding what his thought process was,” Stevens-Graziani said.

Bender contended that the court applied the incorrect constitutional standard in the case and said that his clients would file a petition for rehearing.

“I don’t think the question is what the reporter should have known a reader would think about the piece. The appropriate standard is:  What did the reporter intend to write?” Bender said. “In Wren’s mind, and in his testimony, ‘along with’ meant that they were there together, not that Dean and Kelley jointly delivered the contributions.”

The 13-page decision is Kelley v. Wren (Lawyers Weekly No. 011-007-16). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan