2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-8-2013

Leon Kendall v. Daily News Publishing Co

Precedential or Non-Precedential: Precedential

Docket No. 11-4162

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-4162

_____________

THE HONORABLE LEON A. KENDALL,

 Petitioner

v.

THE DAILY NEWS PUBLISHING CO. 

d/b/a The Virgin Islands Daily News; 

JOY BLACKBURN; and JOSEPH TSIDULKO

____________

 

On Writ of Certiorari to the Supreme Court

of the Virgin Islands

Supreme Court No. VISC-1: 2010-00046

 

Argued December 6, 2012

Before: SMITH, HARDIMAN, and ROTH,

Circuit Judges

(Filed: March 8, 2013)

 
2

Howard M. Cooper

Suzanne M. Elovecky

Julie E. Green [ARGUED]

Todd & Weld

28 State Street

31st Floor

Boston, MA 02109

Counsel for Plaintiff-Petitioner

Michael L. Berry

Michael D. Sullivan [ARGUED]

Levine, Sullivan, Koch & Schulz

1760 Market Street

Suite 1001

Philadelphia, PA 19103

Kevin A. Rames

Suite 3

2111 Company Street

Christiansted, St. Croix, VI 00820

Counsel Defendants-Respondents

_____________________

 OPINION

_____________________ 
3

SMITH, Circuit Judge.

We granted certiorari in this case to decide three 

questions: (1) whether the Virgin Islands Supreme Court 

correctly applied independent appellate review for actualmalice determinations in public-figure libel suits, (2) 

what the appropriate actual-malice standard is in

defamation-by-implication cases, and (3) whether the 

justices should have recused themselves. We conclude 

that although the Supreme Court misapplied independent 

appellate review, it correctly held that Leon Kendall—a 

judge formerly on the Virgin Islands Superior Court—

cannot establish actual malice for his libel claim. This 

conclusion means that we need not decide the recusal 

question because our plenary review makes any potential 

error from the alleged bias harmless. Accordingly, we 

will affirm the Court’s judgment.

I

A. Factual History

Judge Kendall contends that the Daily News and 

Joy Blackburn (“the defendants” or “Daily News”)

defamed him while reporting on three events in his 

judicial career: his decision to grant bail to Daniel 

Castillo, his decision to place Ashley Williams under 

house arrest, and his decision to retire. Most of the Daily 

News’s articles admitted into evidence discussed the bail 

decision. Castillo appeared before Judge Kendall in 
4

March of 2007 for a preliminary hearing for a charge of

aggravated assault. The Government requested that bail 

be set at $500 because he had previous encounters with 

the criminal justice system: a 2003 felony conviction for 

possession of stolen property and a 2004 rape charge that 

(according to the Government) had been dismissed. 

Castillo’s criminal record contained the 2003 conviction 

but stated that the rape charge had “no known 

disp[osition].” In actuality, the rape charge had been one 

of nine charges which were dismissed when Castillo 

entered a plea agreement for assault with a deadly 

weapon. These charges and the assault conviction were 

absent from the criminal record presented to Judge 

Kendall. Thus, nothing presented at the hearing indicated 

that Castillo had a history of violence.

Judge Kendall released Castillo on his own 

recognizance. On April 6, 2007, Castillo murdered a 

twelve-year-old girl. Coverage of the murder in the April 

14, 2007 edition of the Daily News explained that 

Castillo was free on his own recognizance on the 

aggravated assault charges when he committed the 

murder. After recounting the alleged facts of the assault, 

the Daily News described the preliminary hearing: 

“Kendall found probable cause to charge Castillo [with 

assault] but released him pending trial—despite 

Castillo’s history of violence including charges of rape, 

assault and weapons violations.” Judge Kendall contends 

this statement and similar statements in subsequent 
5

articles were defamatory because they implied that he 

was aware of Castillo’s violent history when, in fact, he 

was not.

The second set of articles at issue covers Judge 

Kendall’s decision to place Ashley Williams under house 

arrest. On November 17, 2006, a jury convicted Williams 

of first-degree rape, first-degree assault, and first-degree 

unlawful sexual contact. After receiving the verdict, the 

Government sought to have Williams remanded into 

custody. Williams, however, requested that he be free 

over the weekend to get his affairs in order before 

reporting to prison. Judge Kendall granted Williams’s 

request but placed him under house arrest.

Williams failed to report to jail the following 

Monday as required by Judge Kendall’s order. Instead, 

Williams refused to leave his home and threatened to 

blow himself up during a five-hour standoff with police.

In a November 21, 2006 article, the Daily News reported 

on the standoff and explained that Williams was at his 

home because after he was “convicted of rape and 

assault,” he was “allowed by a judge to spend the 

weekend in the community unsupervised before he was 

supposed to report to jail Monday.” The article further 

explained that Judge Kendall had released Williams and 

that “[t]ypically, people convicted of violent crimes . . . 

are remanded into custody to await sentencing once they 

are found guilty.” Judge Kendall contends that the Daily 
6

News defamed him by stating that Williams was 

“unsupervised” in the community when, in fact, Williams 

was under house arrest at the time of the standoff with 

police.

The final event at issue was Judge Kendall’s 

decision to retire. In a February 19, 2009 article, the 

Daily News reported on that decision in an article 

subtitled “[t]hree judicial complaints against him still 

pending.” This subtitle referred to three complaints filed 

against Judge Kendall with the Virgin Islands 

Commission on Judicial Disabilities for allegedly

misapplying the law in his bail decisions. At the time the 

article was published, Judge Kendall had successfully 

challenged the authority of the Commission to hold 

hearings regarding the complaints in the District Court of 

the Virgin Islands. This ruling, however, was still on 

appeal to this Court. Judge Kendall argues that the Daily 

News defamed him by stating that the complaints were 

“still pending,” even though they had been dismissed by 

the District Court.

B. Procedural History

On October 5, 2007, Judge Kendall filed this libel 

action against the Daily News and two of its reporters, 

Joy Blackburn and Joseph Tsidulko, in the Virgin Islands

Superior Court. After Judge Kendall amended his 

original complaint to include the retirement article and 

the parties completed discovery, the case proceeded to a 
7

jury trial. The jury returned a verdict in favor of Judge 

Kendall for $240,000, and against the Daily News and 

Blackburn. The jury determined that Tsidulko was not

liable. The Daily News and Blackburn subsequently 

moved for a judgment notwithstanding the verdict. The 

Superior Court granted this motion and entered a directed 

verdict in their favor.

Judge Kendall appealed the Superior Court’s 

judgment to the Virgin Islands Supreme Court. Judge 

Kendall requested that the justices recuse themselves 

because they had initiated a criminal contempt charge 

pending against him.

1

(1) whether the ‘actual malice’ standard 

articulated in New York Times v. Sullivan, 

376 U.S. 254, 279–80 (1964), can be 

satisfied by a defendant’s mere awareness of 

a defamatory implication (as opposed to an 

The Supreme Court denied his 

request and affirmed the Superior Court’s judgment on 

the narrow ground that Judge Kendall could not prove 

actual malice for any of the statements. We subsequently 

granted certiorari to answer three questions: 

 1 The criminal contempt charge against Judge Kendall is 

the subject of a separate proceeding before this panel that 

is still pending and was argued on December 6, 2012. See 

In re Kendall, No. 11-4471 (3d Cir. argued Dec. 6, 

2012).
8

actual intent to convey that implication) and, 

if so, whether the standard was satisfied in 

this case; 

(2) whether the Virgin Islands Supreme 

Court’s review exceeded the scope of the 

“independent examination” required by Bose 

Corp. v. Consumers Union of U.S., Inc., 466 

U.S. 485, 499 (1984); and 

(3) whether the Virgin Islands Supreme 

Court Justices erred in not recusing 

themselves from this matter.

We exercise plenary review over decisions of the

Virgin Islands Supreme Court that relate to questions of 

federal constitutional law. See People of the V.I. v. John, 

654 F.3d 412, 415, 417–22 (3d Cir. 2011); Pichardo v. 

V.I. Comm’r of Labor, 613 F.3d 87, 98 (3d Cir. 2010).

II

Before turning to the merits, we must first examine 

whether Congress has removed our jurisdiction over this 

case with recent legislation that changes how decisions of 

the Virgin Islands Supreme Court are reviewed by 

federal courts. See In re Flat Glass Antitrust Litig., 288 

F.3d 83, 88 n.5 (3d Cir. 2002) (noting that “we have an 

‘independent responsibility to examine our own 
9

jurisdiction sua sponte’” (quoting In re Ford Motor Co., 

110 F.3d 954, 958–59 (3d Cir. 1997))). 

In the Revised Organic Act of 1954, as amended in 

1984, Congress authorized the Virgin Islands legislature 

to establish its own local appellate court and provided 

that when it did so, we would exercise certiorari 

jurisdiction over that court’s final decisions for a limited 

period of institutional development. See Defoe v. Phillip, 

702 F.3d 735, 738–40 (3d Cir. 2012) (laying out the 

history of our relationship with the courts of the Virgin 

Islands). Our certiorari jurisdiction was to last up to

fifteen years from the creation of the Virgin Islands 

Supreme Court—enough time for the Virgin Islands 

Supreme Court to develop “sufficient institutional 

traditions [of its own] to justify direct review by the 

Supreme Court of the United States.” 48 U.S.C. § 1613.

Recognizing that the Virgin Islands Supreme Court might 

develop sufficient institutional traditions before the 

fifteen-year mark, however, Congress required this Court 

to regularly evaluate and report on its progress. Id.; see 

also Defoe, 702 F.3d at 739–40. The Virgin Islands 

Supreme Court passed that test with flying colors last

year when a committee of this Court recommended to the 

Third Circuit Judicial Council that Congress eliminate 

our certiorari jurisdiction over Virgin Islands Supreme 

Court decisions in favor of direct review by the United 

States Supreme Court. See Judicial Council of the U.S. 

Court of Appeals for the Third Circuit, Report on the 
10

Virgin Islands Supreme Court 1 (2012), available at

http://www.visupremecourt.org/wfData/files/

BookletReportofVirginIslandsSupremeCourt.pdf.

Congress agreed and quickly acted on the Third 

Circuit’s recommendation. By December 13, 2012, both 

the House of Representatives and the Senate had passed 

H.R. 6116, a bill that would eliminate our certiorari 

jurisdiction over final decisions of the Virgin Islands 

Supreme Court and replace it with direct review by the 

Supreme Court of the United States. See An Act to 

amend the Revised Organic Act of the Virgin Islands to 

provide for direct review by the United States Supreme 

Court of decisions of the Virgin Islands Supreme Court, 

H.R. 6116, §§ 1–2, 112th Cong. (2012). President Obama 

signed H.R. 6116 into law on December 28, 2012.

We must now decide whether H.R. 6116 strips us 

of our certiorari jurisdiction over cases like this one in 

which certiorari has been granted and the matter is 

awaiting decision at the time of the bill’s enactment. We 

hold that it does not. 

When interpreting a statute, we normally presume 

that the statute does not apply retroactively—that is, to 

cases pending on the date of the law’s enactment—absent 

clear congressional intent to the contrary. Hamdan v. 

Rumsfeld, 548 U.S. 557, 576 (2006) (citing Landgraf v. 

USI Film Prods., 511 U.S. 244, 280 (1994)). This 

presumption against retroactivity, however, does not 
11

apply to statutes that only alter jurisdiction. “[U]nlike 

other intervening changes in the law, a jurisdictionconferring or jurisdiction-stripping statute usually ‘takes 

away no substantive right but simply changes the tribunal 

that is to hear the case.’” Id. at 576–77 (quoting 

Hallowell v. Commons, 239 U.S. 506, 508 (1916)).

Consequently, as the Supreme Court has explained, “no 

retroactivity problem arises” with respect to an 

intervening change in jurisdiction “because the change in 

the law does not ‘impair rights a party possessed when he 

acted, increase a party’s liability for past conduct, or 

impose new duties with respect to transactions already 

completed.’” Id. at 577 (quoting Landgraf, 511 U.S. at 

280).

“That does not mean, however, that all 

jurisdiction-stripping provisions . . . must apply to cases 

pending at the time of their enactment.” Id. After all, 

“‘[n]ormal rules of [statutory] construction’ . . . may 

dictate otherwise.” Id. (quoting Lindh v. Murphy, 521 

U.S. 320, 326 (1997)). Here, Congress spoke clearly: 

“[t]he amendments made by [H.R. 6116]”—that is, the 

elimination of the Third Circuit’s certiorari jurisdiction 

and substitution of such review by the United States 

Supreme Court—“apply to cases commenced on or after 

the date of the enactment of [H.R. 6116].” H.R. 6116 § 3. 

No matter whether “cases commenced” carries a broader 

meaning referring to the filing of a complaint in the 

Superior Court or a narrower meaning referring to the 
12

filing of a certiorari petition in this Court—an issue we 

need not decide today—Kendall commenced this case 

long before H.R. 6116’s enactment. 

We are mindful that the Ninth Circuit reached the 

opposite conclusion about Congress’s elimination of its 

certiorari jurisdiction over the Guam Supreme Court’s 

decisions. See Santos v. Guam, 436 F.3d 1051, 1054 (9th 

Cir. 2006). There, the Ninth Circuit concluded that 

Congress’s elimination of its certiorari jurisdiction (and 

substitution of direct review by the Supreme Court of the 

United States) did apply to pending cases.

But Santos is distinguishable for at least two 

reasons. To the extent that Santos interprets Supreme 

Court precedent as holding that jurisdiction-stripping

provisions automatically apply retroactively absent an 

express reservation of jurisdiction over pending cases, 

the Supreme Court subsequently rejected such an 

approach in Hamdan. See Hamdan, 548 U.S. at 584 

(rejecting this “inflexible” rule advanced by Justice 

Scalia’s dissent and by the Government). More 

importantly, the jurisdiction-stripping provision in Santos

differs markedly from the one we confront here. In 

Santos, the Ninth Circuit addressed a statute in which 

Congress was completely silent about the effective date 

of the jurisdiction-stripping provision. Santos, 436 F.3d 

at 1053 (explaining that Congress did not “express[] an 

intent as to the effective date”). By contrast, Congress 
13

was explicit that H.R. 6116’s amendments apply only “to 

cases commenced on or after the date of the enactment” 

of the statute. See H.R. 6116 § 3. As a result, we retain 

certiorari jurisdiction over all cases “commenced” before 

the President signed H.R. 6116, including this one. See

Hamdan, 548 U.S. at 584 (drawing the negative inference 

that Congress did not intend to eliminate jurisdiction over 

pending detainee habeas petitions where the statute was 

silent about whether its jurisdiction-stripping subsection 

applied to cases even though it expressly made two other 

subsections retroactive).

III

A. Independent Appellate Review

The parties disagree whether the Virgin Island 

Supreme Court correctly applied the independentappellate-review standard applied to determinations of 

actual malice. See Bose Corp., 466 U.S. at 509–11.

Independent appellate review is a two-step process. The 

reviewing court first determines what credibility 

determinations the jury must have made. This is done by 

discarding the evidence or testimony that the “jury must

have rejected” on the basis of “the trial court’s 

instructions, the jury’s answers to . . . special 

interrogatories, and an understanding of those facts not in 

dispute.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 

491 U.S. 657, 690 (1989). These “credibility 
14

determinations are reviewed under the clearly-erroneous 

standard.” Id. at 688. 

The evidence which is not excluded by the HarteHanks test is then weighed “alongside the undisputed 

evidence” to determine if the defendant acted with actual 

malice. Id. at 690–91. In other words, as the Ninth 

Circuit explained in Eastwood v. National Enquirer, Inc., 

123 F.3d 1249 (9th Cir. 1997), “we must figure out, as 

best we can from the cold record, which evidence the 

jury accepted as credible, and which it discarded. Then 

we must determine whether the believed evidence 

establishes actual malice.” Id. at 1252.

The Virgin Islands Supreme Court did not apply 

this standard in its review. At no point did the Supreme 

Court analyze what credibility determinations the jury 

must have made, nor did it express the need to defer to 

the credibility determinations of the jury. As seen in the 

two-step process described, however, “[i]ndependent 

review is not a limitless ransacking of the record as a 

whole. . . . Purely factual determinations (such as 

credibility calls) remain subject to the usual degree of 

deference.” Mandel v. Boston Phoenix, Inc., 456 F.3d 

198, 208 (1st Cir. 2006). The Virgin Islands Supreme 

Court thus erred by not determining whether the jury 

made any credibility determinations to which it had to 

accord deference.
15

B. Actual Malice

The Virgin Islands Supreme Court’s 

misapplication of independent appellate review is 

reversible error only if we were to reach a different result 

by applying the standard appropriately. See Harte-Hanks, 

491 U.S. at 689–93 (affirming a circuit court holding 

even though that court had misapplied the independentappellate-review standard). The Virgin Islands Supreme 

Court concluded that the evidence was insufficiently 

clear and convincing to support a jury finding of actual 

malice. Before we can decide whether that conclusion is 

correct, we must resolve a dispute between the parties 

regarding what constitutes actual malice in defamationby-implication cases.2

In defamation-by-implication cases, the alleged 

 2 The Daily News contends that Judge Kendall has 

waived this argument because he did not argue that the 

Superior Court applied the wrong standard before the 

Virgin Islands Supreme Court. We disagree because the 

Superior Court used the actual-malice standard urged by 

Judge Kendall. The possibility that actual malice requires 

something different in defamation-by-implication cases 

was first recognized and used by the Virgin Islands 

Supreme Court, which means Judge Kendall is free to 

argue that this is a new error perpetrated by the Supreme 

Court.
16

defamatory statement has two possible meanings, one 

that is defamatory and one that is not. See 50 Am. Jur. 2d 

Libel and Slander § 158 (explaining that “‘[d]efamation 

by implication’ occurs when a defendant juxtaposes a 

series of facts to imply a defamatory connection between 

them”). These cases differ from ordinary defamation 

cases in which the alleged defamatory statement has only 

a defamatory meaning. See id. § 118 (collecting manners 

in which a statement can be defamatory); see also

Restatement (Second) of Torts § 559 (explaining that “[a] 

communication is defamatory if it tends to so harm the 

reputation of another as to lower him in the estimation of 

the community or to deter third persons from associating 

or dealing with him”) (1977). In ordinary defamation 

cases, the actual-malice standard is relatively clear and 

undisputed by the parties. “The Supreme Court has 

defined actual malice as knowledge that a statement was 

false or [made with] reckless disregard of whether it was 

false or not.” Schiavone Constr. Co. v. Time, Inc., 847 

F.2d 1069, 1089 (3d Cir. 1988) (quoting Sullivan, 376 

U.S. at 280) (quotation marks omitted). Recklessness is 

shown by demonstrating that “the defendant in fact 

entertained serious doubts as to the truth of the statement 

or that the defendant had a subjective awareness of 

probable falsity.” Id. (internal citations and quotation 

marks omitted). “[This] standard is a subjective one, 

based on the defendant’s actual state of mind . . . .” Id. 

(citing St. Amant v. Thompson, 390 U.S. 727, 731

(1968)).
17

The parties disagree, however, on what constitutes 

actual malice in defamation-by-implication cases. They 

agree that there are two elements to actual malice in these 

cases: a “falsity” element and a “communicative intent”

element. The parties also agree as to what satisfies the 

falsity element—that is, the extent to which defendants 

must be aware that the defamatory meaning of their 

statement is false. For this element, the parties concur 

that plaintiffs must show that the defendants either knew 

that the defamatory meaning of their statement was false 

or were reckless in regard to the defamatory meaning’s 

falsity. 

They disagree, however, over what is sufficient to 

satisfy the communicative-intent element—that is, the

extent to which defendants must be aware of the 

defamatory meaning of their statement. The Daily News 

argues that plaintiffs can satisfy this element only by

showing that the defendants intended the defamatory 

meaning. Judge Kendall agrees that intentional 

communication of the defamatory meaning is sufficient 

but argues that plaintiffs can also satisfy this element by 

showing that the defendants were aware of the 

defamatory meaning and acted recklessly in regard to it. 

Resolving this disagreement requires us to answer 

two questions: (1) Does the actual-malice standard apply

differently in defamation-by-implication cases than in 

ordinary defamation cases such that more than 
18

knowledge of falsity or reckless disregard for truth is 

required (as the parties believe)? (2) If the standard is 

different, then is actual malice established, on one hand,

only by showing that the defendant intended to 

communicate the defamatory meaning or, on the other 

hand, by showing either that the defendant intended to 

communicate the defamatory meaning or was aware of 

the defamatory meaning and reckless in regard to it?

We agree with the First, Sixth, Seventh, and Ninth 

Circuits: plaintiffs in defamation-by-implication cases

must show something beyond knowledge of, or 

recklessness in regard to, the falsity of the statement’s 

defamatory meaning. Compuware Corp. v. Moody’s 

Investors Servs., Inc., 499 F.3d 520, 528–29 (6th Cir. 

2007); Howard v. Antilla, 294 F.3d 244, 252 (1st Cir. 

2002); Newton v. Nat’l Broad. Co., Inc., 930 F.2d 662, 

681 (9th Cir. 1990); Saenz v. Playboy Enters., Inc., 841 

F.2d 1309, 1317–18 (7th Cir. 1988). The Supreme Court 

has explained that in the libel context, “[m]alice [has 

been] defined in numerous ways, but in general 

depend[s] upon a showing that the defendant acted with 

improper motive.” Herbert v. Lando, 441 U.S. 153, 163–

64 (1979). Showing motive “hinge[s] upon the intent or 

purpose with which the publication was made.” Id. 

at 164. These statements show that the intent of the 

publisher is linked to determining if that publisher had 

the actual malice necessary to support a libel claim. Cf.

Harte-Hanks, 491 U.S. at 688 (explaining that actual 
19

malice involves a subjective inquiry into a defendant’s 

mental state rather than just an objective determination of 

a statement’s truth); Saenz, 841 F.2d at 1317 (“Proof of 

actual malice depends upon the defendant’s actual state 

of mind.” (citing Herbert, 441 U.S. at 160)).

The need to show intent necessarily means that the 

actual-malice standard will have different elements of 

proof in ordinary defamation cases than in defamationby-implication cases. In ordinary defamation cases, intent 

to defame can be established solely through knowledge 

that the statement was false. After all, if the defendants

knew that the statement made was false and defamatory, 

then they must have intended to defame. And while the 

statement itself rarely indicates whether its publisher 

knew it was false, the statement does show that its 

publisher knew it was defamatory because it can have 

only defamatory meanings. So all a plaintiff needs to 

demonstrate in ordinary defamation cases to establish 

intent to defame is that the defendants knew their 

statement was false.

But in defamation-by-implication cases, showing 

known falsity alone is inadequate to establish an intent to 

defame. In these cases, we may no longer presume with 

certainty that the defendants knew they were making a 

defamatory statement because the statement has 

defamatory and nondefamatory meanings. Therefore, in 

such cases, plaintiffs must show something that 
20

establishes defendants’ intent to communicate the 

defamatory meaning.

This second element of actual malice—showing 

the defendant’s communicative intent—can be satisfied, 

as Judge Kendall argues, by demonstrating that the 

defendant either intended to communicate the defamatory 

meaning or knew of the defamatory meaning and was 

reckless in regard to it. This approach necessarily follows 

from the Supreme Court’s inclusion of recklessness in 

the actual-malice standard. Sullivan, 376 U.S. at 280. 

Actual malice is a term of art that the Court has explained 

“should not be confused with the concept of malice as an 

evil intent or a motive arising from spite or ill will”; it 

should be understood to be “a shorthand [used] to 

describe the First Amendment protections for speech 

injurious to reputation.” Masson v. New Yorker 

Magazine, Inc., 501 U.S. 496, 510–11 (1991). 

Recklessness has always been included in the definition 

of actual malice under the First Amendment. See, e.g., 

Sullivan, 376 U.S. at 280 (defining actual malice as 

speaking “with knowledge that it was false or with 

reckless disregard of whether it was false or not”); 

Masson, 501 U.S. at 510 (restating Sullivan’s definition 

of actual malice). The Court has even described reckless

disregard as “the line which our cases have drawn 

between false communications which are protected and 

those which are not” that represents the appropriate 

balancing of the interests at stake in First Amendment 
21

cases. St. Amant, 390 U.S. at 731–32. Recklessness is 

thus the outer limit of actual malice, which means that 

the communicative-intent element of actual malice in 

defamation-by-implication cases can be satisfied by 

reckless disregard for the defamatory meaning of a 

statement.

This approach is supported by the First, Sixth, and 

Seventh Circuits. These courts have stated that to find 

actual malice in defamation-by-implication cases, the 

plaintiff must “show with clear and convincing evidence 

that the defendants intended or knew of the implications 

that the plaintiff is attempting to draw from the allegedly 

defamatory material.” Saenz, 841 F.2d at 1317–18; see 

Compuware Corp., 499 F.3d at 528–29; Howard, 

294 F.3d at 252. This formulation of the rule was first 

stated by the Seventh Circuit in Saenz, which the First 

and Sixth Circuits subsequently quoted without 

elaboration. See Howard, 294 F.3d at 252; Compuware 

Corp., 499 F.3d at 528–29. Admittedly, this statement of 

the actual-malice standard uses the phrase “knew of the 

implications” rather than “recklessness.” The Saenz

Court, however, treated the phrase “knew of” and the 

word “recklessness” as synonymous, which is evident in 

its rearticulation of the standard as requiring the plaintiff 

to establish “that the defendants intended to imply or 

were reckless toward the [defamatory] implications.” 

Saenz, 841 F.2d at 1318. The actual-malice standard we 
22

adopt is thus the same as that articulated by the Seventh 

Circuit and later adopted by the First and Sixth Circuits.

We emphasize the recklessness conception of this 

test rather than the “know of” conception because 

recklessness conforms more closely with the Supreme 

Court’s definition of actual malice. Furthermore, mere

knowledge of the defamatory meaning of a statement that 

also has a nondefamatory meaning cannot be enough.

The Supreme Court’s balancing of the First Amendment 

interests in public-affairs libel suits favors permitting 

some libelous conduct to avoid chilling protected speech. 

See St. Amant, 390 U.S. at 731–32 (explaining that the 

recklessness standard is preferable to a reasonable-man 

standard because “protect[ing] some erroneous 

publications as well as true ones” is necessary “to insure 

the ascertainment and publication of the truth about 

public affairs”). Yet if mere knowledge were sufficient to 

find defamatory intent, then actual malice could be found

no matter how unlikely it is that a listener would interpret 

the statement as having the defamatory meaning. This is 

contrary to the Supreme Court’s preference for a broader 

scope of protection for potentially libelous speech.

Recklessness, by contrast, captures this preference

because it requires that the defendants knew that the 

defamatory meaning was not just possible, but likely, and 

still made the statement despite their knowledge of that 

likelihood. Cf. Harte-Hanks, 491 U.S. at 688 (defining 

reckless disregard for the truth as instances where “the 
23

defendant actually had a high degree of awareness of 

probable falsity”).

The defendants rely on the Ninth Circuit’s Newton

decision,3

 3 The defendants cite several additional cases to support 

their argument. These decisions, however, do not discuss 

the actual-malice standard. Instead, they analyze what 

needs to be shown to satisfy the state-law elements of 

libel in defamation-by-implication cases. See Nichols v. 

Moore, 477 F.3d 396, 402 (6th Cir. 2007); Chapin v. 

Knight-Ridder, Inc., 993 F.2d 1087, 1092–93 (4th Cir. 

1993); White v. Fraternal Order of Police, 909 F.2d 512, 

518–19 (D.C. Cir. 1990).

which does not include reckless disregard for, 

or knowledge of, the defamatory meaning in its 

articulation of the communicative-intent element.

930 F.2d at 681 (explaining that libel liability cannot be 

permitted for “what was not intended to be said”). The 

Newton Court did not consider, much less reject, whether

the communicative-intent element may be satisfied by 

showing a reckless disregard for the defamatory meaning 

of a statement. See 930 F.2d at 681. The decision thus

does not necessarily conflict with the standard we now 

adopt. See Howard, 294 F.3d at 254 (treating the Ninth 

Circuit’s Newton decision as compatible with the Seventh 

Circuit’s Saenz decision). Moreover, to the extent the 

Ninth Circuit’s usage provides any persuasive value to 

the defendants’ argument, that value is outweighed by the 
24

inclusion of recklessness in the Supreme Court’s 

definition of actual malice.

IV

We next consider whether the Virgin Islands 

Supreme Court erred by ruling that Judge Kendall cannot 

establish actual malice. We will reverse the Supreme 

Court only if our independent review of the record shows 

that a jury could find actual malice by clear-andconvincing evidence. Tucker v. Fischbein, 237 F.3d 275, 

284 (3d Cir. 2001). This standard “requires the [plaintiff] 

to provide evidence so clear, direct, weighty, and 

convincing as to enable a clear conviction, without 

hesitation, about whether or not the defendants acted” in 

a way that renders them liable. See Amica Mut. Ins. Co. 

v. Fogel, 656 F.3d 167, 179 (3d Cir. 2011) (citation and 

internal quotation marks omitted). Judge Kendall 

contends that the Virgin Islands Supreme Court erred by 

holding that the evidence is insufficient to find actual 

malice for statements made in the articles relating to his 

release of Castillo on his own recognizance, his decision 

to place Williams under house arrest, and his decision to 

retire. We agree with the Supreme Court’s ruling in its 

entirety and will thus affirm.

A. Castillo Articles

Judge Kendall argues that the defendants’ articles 

relating to his bail decision in Daniel Castillo’s case are 
25

defamatory because they implied that he knew of 

Castillo’s history of violence when he released Castillo 

on his own recognizance. The defendants’ articles 

contained the statement (or statements similar to): 

“Kendall found probable cause to charge Castillo but 

released him pending trial—despite Castillo’s history of 

violence including charges of rape, assault and weapons 

violations.” Although this statement does not explicitly 

say that Judge Kendall released Castillo despite knowing

of his history of violence, Judge Kendall contends that 

this is the implication the defendants intended readers to 

understand. As we have explained, to show actual malice

for defamation by implication, Judge Kendall must show 

by clear-and-convincing evidence both (1) that the 

defendants either intended the defamatory meaning or 

knew of the defamatory meaning and were reckless in 

regard to it, and (2) that the defendants made the 

statement with “knowledge that [the] statement was false 

or [with] reckless disregard of whether it was false or 

not,” Schiavone Constr. Co., 847 F.2d at 1089 (quoting 

Sullivan, 376 U.S. at 280) (quotation marks omitted).

Judge Kendall first argues that we must disregard 

the testimony of Blackburn, who authored the articles, 

because the jury must have found her testimony

incredible. See Harte-Hanks, 491 U.S. at 690. We agree. 

Blackburn testified that when she wrote the statement,

she intended a nondefamatory meaning that “Mr. Castillo 

had a history of violence and Judge Kendall did choose 
26

to release him.” The jury must have concluded that this 

testimony was incredible because to decide otherwise—

that Blackburn did not intend the defamatory meaning—

would have prevented them from finding actual malice, 

as they did. We thus cannot consider Blackburn’s 

testimony about the meaning of her statement. 

The jury’s rejection of her testimony does not end 

our analysis, however. Mere disbelief of a defendant’s 

statement ordinarily is insufficient to establish malice. 

Bose, 466 U.S. at 512 (“When the testimony of a witness 

is not believed, the trier of fact may simply disregard it. 

Normally the discredited testimony is not considered a 

sufficient basis for drawing a contrary conclusion.”).

Judge Kendall argues that the communicative-intent 

element of actual malice is satisfied through Blackburn’s 

coverage of protests that followed Castillo’s murder of a 

12-year-old girl. Judge Kendall contends that even if the 

defendants were initially unaware that their statement 

could imply that he was aware of Castillo’s history of 

violence when he released him on his own recognizance, 

they were made aware through the protests organized by 

people who, as Blackburn acknowledged at trial, 

“understood that Judge Kendall had released Mr. Castillo 

despite his history of violence.” Once the defendants 

were aware of what the public understood their statement 

to mean, he argues, their continued publication of the 

statement was at least reckless. 
27

This evidence is insufficient to satisfy the 

communicative-intent element by clear-and-convincing 

evidence in light of the subjective nature of the actualmalice inquiry. Schiavone Constr. Co., 847 F.2d at 1089 

(quoting St. Amant, 390 U.S. at 731). The subjective 

nature of this inquiry requires that there be some 

evidence showing, directly or circumstantially, that the 

defendants themselves understood the potential 

defamatory meaning of their statement. Id. (quoting St. 

Amant, 390 U.S. at 731). No direct evidence in the record 

of this case suggests that the defendants themselves knew 

of, much less intended, the defamatory meaning. 

There is also no circumstantial evidence of record 

linking the protestors’ understanding of what took place 

with the statement made by the defendants. The 

protestors’ testimony did not establish that the Daily 

News was their source. The protesters could not recall at 

trial whether their source was the statements by the Daily 

News or coverage from other Virgin Islands news outlets. 

If the Daily News’s reporting had been the sole source of 

information for Castillo’s case, then Judge Kendall 

would have a stronger basis for inferring the defendants’

knowledge of and recklessness with regard to the 

defamatory meaning of the statement. But here, the story 

was covered by several news outlets, which makes it 

impossible to know whether the protests were caused or 

informed by the defendants’ statements. Consequently, 

we cannot conclude with “clear conviction” and “without 
28

hesitation” that the defendants were made aware of the 

defamatory meaning of their statement through their 

coverage of the protests. Amica Mut. Ins. Co., 656 F.3d 

at 179 (explaining what satisfies the clear-andconvincing standard). Because Judge Kendall cannot 

establish that the defendants intended the defamatory 

meaning or knew of it and were reckless in regard to it, 

he fails to prove actual malice by clear-and-convincing 

evidence.

4

Judge Kendall next argues that the Daily News’s 

articles regarding Ashley Williams are defamatory 

because they stated that Judge Kendall allowed Williams 

“to spend the weekend in the community unsupervised.”

In fact, Judge Kendall had placed him under house arrest. 

This is an ordinary defamatory statement rather than one 

by implication, so to establish actual malice, Judge 

Kendall must show that the statement was made with 

“knowledge that [the] statement was false or [with] 

reckless disregard of whether it was false or not.” 

B. Williams Articles

 4 Because Judge Kendall needs to show both elements of 

actual malice to succeed, and we conclude that he cannot 

satisfy the communicative-intent elements, we need not 

address whether he can prove that the defendants knew of 

or recklessly disregarded the Castillo articles’ falsity.
29

Schiavone Constr. Co., 847 F.2d at 1089 (quoting 

Sullivan, 376 U.S. at 280) (quotation marks omitted).

There is no evidence that the defendants knew 

their statement was false. Blackburn, who authored this 

article, was not informed that the statement was incorrect 

until litigation commenced. Judge Kendall argues, 

however, that Blackburn’s testimony demonstrates actual 

malice through recklessness. He contends that the jury 

must have determined from her testimony that she 

fabricated her “unsupervised” description because she 

did not have a source for the assertion. Fabrication may

constitute recklessness, St. Amant, 390 U.S. at 732, but 

the jury did not necessarily conclude that she was without 

a source for her article. The relevant testimony is:

Q: You didn’t tell [the public] that 

[Williams] had been placed under house 

arrest with arrangements to be made by the 

Marshals, right?

A: No one there that night, none of those 

officers who were there, not a single one of 

them were saying, oh, Mr. Williams is under 

house arrest.

Q: Did you ask that question?

A: No, sir.
30

. . .

Q: Miss Blackburn, did you walk over to 

any of those people, those law enforcement 

people, and say, could you tell me what’s 

going on here? What are the circumstances 

of Mr. Williams being in his home?

You had already written your story two days 

earlier. You knew he had been convicted.

A: Yeah, I knew he had been convicted. And 

–

Q: So, didn’t you think it was important,

before you told the community that Judge 

Kendall had just let him out unsupervised in 

the community, to be accurate and truthful?

A: Nobody who was there was saying the 

man is supervised.

. . .

Q: Now, you claimed, as I understand it, that 

the source for the words that you used 

“released unsupervised in the community”

was Assistant Attorney General Renee 

Gumbs Carty who said those words to you 

on a telephone call in which another 

Assistant Attorney General name[d] Kerry 
31

Drue supposedly was listening in. Is that 

your testimony?

A: . . . Yes, sir.

Q: And I just want to be very clear for the 

jury.

Your testimony under oath is that Renee 

Gumbs Carty said to you in a telephone call 

in which Attorney General Kerry Drue . . . 

was on the phone as well, that Judge 

Kendall had released Mr. Williams for the 

weekend unsupervised in the community. Is 

that your testimony?

A: My recollection is that they send [sic]

him home for the—that they said that the 

Judge—at the request of the defense that the 

Judge sent Mr. Williams home for the 

weekend to get his affairs in order.

Q: Did they tell you that Judge Kendall had 

released Mr. Williams for the weekend 

unsupervised in the community; yes or no.

A: I told you what my recollection of what 

they said to me was.

Q: So they didn’t tell you that.
32

A: They said at the request of the defense, 

again, that Judge Kendall allowed him to go 

home for the weekend to get his affairs in 

order.

Q: Did they use the word “unsupervised”—

words “unsupervised in the community,” 

Miss Blackburn? Yes or no.

A: I don’t recall them using the word 

“unsupervised.”

The only conclusion the jury must have drawn from this 

testimony is that none of the officers at the standoff and 

none of the prosecutors Blackburn spoke with told her

that Williams was released into the community 

“unsupervised.” This is a necessary conclusion because if 

the jury believed that the officers or the prosecutors did

tell her this, then there would be direct evidence that 

Blackburn believed that Williams was, in fact, 

unsupervised.

Importantly, the jury did not necessarily conclude

that Blackburn lacked a source for her story. To reach 

that conclusion, the jury would have needed to make the 

inferential conclusions that being sent “home” is different 

from being “unsupervised” and that the officers’ lack of 

discussion of supervision was irrelevant to whether 

Blackburn had a source. Although these are reasonable 

inferences, they are not ones we need to defer to under 
33

independent review if our review of the evidence brings 

us to a contrary conclusion. See Harte-Hanks, 491 U.S. 

at 690; Newton, 930 F.2d at 670–71 (explaining that in 

the independent-appellate-review context, the 

“presumption of correctness” of jury determinations 

“applies with less force when a factfinder’s findings rely 

on its weighing of evidence and drawing inferences”).

The evidence does not support the conclusion that 

Blackburn fabricated her story. The parties agree that she

was at the scene of Williams’s standoff, and her 

testimony shows that the officers did not tell her that 

Williams was under house arrest. Furthermore, the 

prosecutors explained that Judge Kendall sent Williams 

“home.”5

 5 We may consider Blackburn’s testimony regarding 

what the officers and prosecutors told her because the 

jury did not necessarily reject it. They likely gave it little 

weight, but their weighing of the evidence is accorded 

little deference under our standard of review.

Finally, there is no evidence that Blackburn had 

any information that Williams was under house arrest. 

Cf. Schiavone Constr., 847 F.2d at 1090 (explaining that 

recklessness can be found where “the defendant finds 

internal inconsistencies or apparently reliable information 

that contradicts [the defendant’s] libelous assertions, but 

nevertheless publishes those statements anyway”). 

Blackburn’s conclusion that Williams was unsupervised 

is thus reasonably derived from her observations at the 
34

scene and her knowledge that he was sent “home.” 

Although she could have done more to verify the facts of 

her story, the information she had assembled shows that 

her conclusion was not fabricated. Actual malice thus 

cannot be established on the basis that the defendants 

fabricated the story.

Judge Kendall’s alternative basis for actual malice 

is that Blackburn should have done more to verify the 

facts of her Williams article. She was at least reckless 

regarding her story’s falsity, he argues, because she never 

sought the transcript of the hearing in which Judge 

Kendall imposed house arrest. This cannot serve as a 

basis for finding actual malice, however, because “failure 

to investigate before publishing, even when a reasonably 

prudent person would have done so, is not sufficient to 

establish reckless disregard” absent some evidence 

showing that the defendant seriously doubted the truth of 

the statement. Harte-Hanks, 491 U.S. at 688. The lack of 

evidence showing any doubt, coupled with the 

determination that the story was not fabricated, means 

that there is insufficient evidence that the defendants 

acted with actual malice.

C. Retirement Article

Finally, Judge Kendall argues that the Daily 

News’s article regarding his retirement is defamatory 

because the subtitle stated that there were “[t]hree 
35

judicial conduct complaints against him still pending.”6

This statement is false, he contends, because the 

complaints had been dismissed by the District Court of 

the Virgin Islands (though the District Court’s ruling was 

still pending on appeal).

7

 6 The defendants contend that this argument is not within 

our grant of certiorari for “whether the Virgin Islands 

Supreme Court’s review exceeded the scope of the 

‘independent examination’ required in Bose Corp. v. 

Consumers Union of U.S., Inc., 466 U.S. 485, 499 

(1984).” Judge Kendall’s argument is within the scope of 

our grant of certiorari because he contends that the Virgin 

Islands Supreme Court should have deferred to the jury 

with regard to the testimony of the subtitle’s author, 

J. Lowe Davis, which Judge Kendall believes was 

adequate to establish actual malice.

7 We assume that the alleged defamatory statement is 

false because our writ of certiorari is limited to the Virgin 

Islands Supreme Court’s application of independent

appellate review to its actual-malice analysis.

This is an ordinary defamatory 

statement, so to establish actual malice, Judge Kendall

must show that the statement was made with “knowledge 

that [the] statement was false or [with] reckless disregard 

of whether it was false or not.” Schiavone Constr. Co., 

847 F.2d at 1089 (quoting Sullivan, 376 U.S. at 280) 

(quotation marks omitted).
36

Judge Kendall argues that the evidence is 

sufficient in light of the credibility determination that the

jury supposedly made regarding the testimony of the 

subtitle’s author. The author testified that “[a]t the time 

[she] wrote the headline of the aforementioned article, 

[she] believe[d] that it was entirely accurate and did not 

state or imply any fact that [she] knew to be false or 

about which [she] entertained any serious doubt.” Judge 

Kendall argues that the jury’s finding of actual malice 

means that the jury disbelieved the author’s testimony 

and that the article itself did not state that the complaints 

were still pending. The jury likely made these 

conclusions, but we defer only to the jury’s finding that 

the author’s testimony was incredible. See Harte-Hanks, 

491 U.S. at 690. We do not defer to the jury’s possible 

conclusion that the article did not support the subtitle 

because that conclusion requires an inference from the 

text of the article, which we are free to review 

independently. See id. at 688–89.

In light of the jury’s credibility determination and 

our review of the remaining evidence, actual malice 

cannot be established by clear-and-convincing evidence. 

The jury’s disbelief of the statement’s author is not 

sufficient because a plaintiff must show more than mere 

disbelief to establish actual malice. Bose, 466 U.S. at 512 

(“When testimony of a witness is not believed, the trier 

of fact may simply disregard it. Normally the discredited 

testimony is not considered a sufficient basis for drawing 
37

a contrary conclusion.”). Nothing in the record 

demonstrates that the defendants knew their statement 

was false or were reckless in regard to its falsity. The 

Daily News’s description of the complaints in the body 

of the article itself illustrates that it believed they were 

still pending. The article describes the complaints in the 

present tense—“the complaints against Kendall

include”—and it accurately reports that Judge Kendall’s 

victory in the District Court was on appeal, suggesting 

that a final determination of the complaints’ fate had not 

been reached.

8

 8 The relevant portion of the article states:

Since May 2007, The Daily News has 

reported on three separate complaints made 

to the Commission on Judicial Disabilities 

against Kendall. These complaints either 

asked for an investigation into the judge’s 

pattern of conduct from the bench or for his 

removal.

The complaints against Kendall include: 

[Description of the complaints brought 

separately by Judicial Watch, the Women’s 

Coalition of St. Croix, and a St. Thomas 

businesswoman.]

The absence of any evidence that the 

In October 2007, Kendall filed a lawsuit in 

District Court asking the court to stop the 

commission from conducting any hearings 
38

Daily News thought its description of the complaints as 

“pending” was or could be false means that there is not 

clear-and-convincing evidence to support a finding of 

actual malice.

* * *

For these reasons, we will affirm the Virgin 

Islands Supreme Court’s ruling that Judge Kendall 

cannot establish the actual malice required to support his 

libel claims. This conclusion means that we need not 

decide whether the justices of the Supreme Court should 

have recused themselves. We have explained that “failure 

to disqualify . . . may be harmless error when a court of 

 

on complaints made against him, contending 

that those hearings would violate the 

separation of powers doctrine and threaten 

the independence of the territorial judiciary. 

In that suit, Kendall contends that he 

scrupulously follows the federal Bail 

Reform Act but some other V.I. Judges do 

not.

In Jan. 2008, Chief District Court Judge 

Curtis Gomez ruled that the Virgin Islands 

Commission on Judicial Disabilities has no 

authority to remove judges. The commission 

has appealed to the 3rd Circuit Court of 

Appeals.
39

appeals will later review a ruling on a plenary basis.” In 

re Sch. Asbestos Litig., 977 F.2d 764, 786 (3d Cir. 1992). 

Plenary review allows us to find harmlessness because 

“[a]ny bias which may have infected the district court’s 

decision is fully remedied by our consideration of the 

motions.” United States v. Vespe, 868 F.2d 1328, 1342 

(3d Cir. 1989); see also Selkridge v. United of Omaha 

Life Ins. Co., 360 F.3d 155, 170–72 (3d Cir. 2004).

As explained at the outset, we exercised plenary 

review over the Virgin Islands Supreme Court’s 

conclusion that Kendall cannot show actual malice 

because it is a matter of constitutional law. See John, 654 

F.3d at 415, 417–22; Pichardo, 613 F.3d at 98. Any 

possible harm that may have been done by the Supreme 

Court justices’ decision to not recuse themselves (and we 

do not suggest that any harm occurred) is thus eliminated 

by our own review. Our application of independent 

appellate review does not change this analysis. That 

standard only requires deference to jury determinations at 

the trial court, and Judge Kendall does not challenge the 

impartiality of either the trial judge or the jury verdict.