No. 85-1.81 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

WARREN E. SIBLE, 

Plaintiff and Appellant, 

LEE ENTERPRISES, INC., an Iowa Corp.; 

DONALD SCHWENNESEN; and MAX SALISBURY, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Alan J. Lerner, Bigfork, Montana 

For Respondent: 

Milodragovich, Dale & Dye; Harold V. Dye, Missoula, 

Montana 

Submitted on Briefs: June 12, 1986 

Decided: November 25, 1986 

id 4 2 ?\986 

Filed: 

*# 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

This is an appeal from the Flathead County District 

Court jury trial and verdict finding the respondents had not 

published a newspaper article with actual malice. 

We reverse and remand for a new trial. 

On December 29, 1982, The Missoulian published an 

article authored by Donald Schwennesen headlined 

"Ex-detective accuses Flathead County sheriff of coverup, 

harassment." The article concerned an allegation by a former 

Flathead County Sheriff's detective, Max Salisbury, that 

appellant, Sible, had stolen a meat smoker and covered up the 

investigation concerning the theft. 

Numerous issues are raised in this Court but we find two 

to be dispositive and to require reversal. Appellant 

contends that the court improperly instructed the jury on 

duties owed by The Missoulian to appellant, Sible. Further, 

appellant contends that the court erred in applying the 

"shield law" to protect Schwennesen's notes from being 

discovered once he had testified as a witness. We find the 

appellant to be correct on both counts. 

First, we must view the evidence in a light most 

favorable to the appellant and then determine whether the 

court's instructions adequately presented appellant's case to 

the jury. For our purposes, we assume that appellant was a 

public official and that the "malice" standard articulated in 

New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 

710, 11 L.Ed.2d 686, applies to the case we here review. 

In summary, in viewing the evidence in a light most 

favorable to the appellant, The Missoulian article charged 

that appellant had been investigated for theft and indicated 
that he may have misused his official position by 

participating in a coverup of his crime. Specifically, the 

article states that Max Salisbury filed a notarized statement 

with the Governor of Montana charging "his investigation of a 

theft involving a fellow officer (appellant) was covered up." 

The article further stated that appellant harassed Salisbury 

and forced him to terminate his employment. 

The charges of theft concerning appellant arose as the 

result of a "smoker" allegedly taken from one William 

Eckerson. Eckerson lost his "smoker" in 1974. The "smoker" 

was worth between $15 and $20. Appellant did in fact have a 

similar "smoker", but he obtained his "smoker" in 1970. A 

subsequent internal investigation within the Sheriff's 

Department determined that appellant's "smoker" was not the 

one taken from Eckerson and the matter was dropped. The 

"smoker caper" was generally known to the Kalispell 

journalism community. Dan Black, managing editor of - The 

Daily Interlake, in Kalispell, refused to publish a story 

because of the unreliability of the charges made by Salisbury 

against appellant. 

Sa.lisbury's statement regarding appellant was made 

during a time of political controversy. Sheriff Rierson, the 

incumbent Flathead County Sheriff, was engaged in a hot 

election contest during the fall of 1982. Salisbury was 

supporting Rierson's opponent. On October 6, 1982, Rierson's 

opponents gathered at the home of one Stevens for the purpose 

of developing campaign strategy. Salisbury attended this 

meeting. Stevens informed Salisbury during the meeting that 

they needed a statement from Salisbury charging appellant 

with stealing the "smoker" so that they could embarrass 

Rierson by showing appellant, who worked for Rierson, covered 
up the investigation of his own theft. At the meeting, 

Stevens told Salisbury that his friend, the reporter 

Schwennesen, promised to write an article after the statement 

was prepared. 

Schwennesen knew Stevens disliked Riersonl s 

administration. Schwennesen informed Stevens that a written 

notarized statement was necessary for him to write a story. 

Schwennesen admitted he knew Salisbury's statement resulted 

from Stevens1 encouragement and that he knew Stevens was 

helping Rierson's opponent. Schwennesen further knew that 

Stevens had assisted Salisbury in preparing the statement 

which provided the basis for the subject story in 

The Missoulian. Salisbury became very nervous about 

Schwennesen doing a story on the "smoker caper." One John 

Christian was an investigating officer on the "smoker" 

allegation. Salisbury asked Schwennesen to contact Christian 

about the truth of the charges, stating Christian would be 

open and honest. Both Schwennesen and his editor were aware 

that Salisbury was nervous about the charges and had 

requested Christian be contacted to confirm the truth or 

falsity of the allegation before an article was published. 

Schwennesen promised to make an independent 

investigation of the truth of the charges and contact 

Christian before publishing an article. Despite his promise, 

Schwennesen eventually published the story without contacting 

Christian and without determining in his own mind if 

Salisbury's charges were true or false. 

Specifically, with reference to the instructions which 

are hereafter discussed, Schwennesen testified that it 

occurred to him Salisbury might have signed a false 

statement. Schwennesen testified under oath that he knew 
Christian could shed light on the charges of "theft", 

"coverup" and "harassment". Despite this fact, Schwennesen 

failed to interview Christian, although Christian was 

ava.ilable and willing to be interviewed. Christian testified 

at the trial that the charges made by Salisbury were without 

merit and that he would have so advised Schwennesen had he 

been contacted by Schwennesen prior to publication. 

Eckerson, the man who lost his "smoker" in 1974, 

attempted to dissuade Schwennesen from printing an article. 

Eckerson told Schwennesen the story was "garbage" which 

should not be published and further advised Schwennesen that 

The Missoulian would sued for publishing the article. 

Despite Eckerson's misgivings, Schwennesen informed Eckerson 

that the story would be published no matter what he said. 

With this evidence before the jury, although disputed, 

the District Judge gave the following three instructions: 

INSTRUCTION NO. 11 

As a matter of law, Plaintiff is a public official, 

and the newspaper article in question concerned his 

official conduct. As such, he may not recover 

against either Defendant unless he proves that the 

newspaper article was false, unprivileged, and 

defamatory, and. that it was published with malice, 

that is, with knowledge that it was false, or with 

a reckless disregard of the truth. 

INSTRUCTION NO. 12 

The term "reckless disregard of the truth," as used 

in these instructions, does not mean mere 

negligence, or even gross negligence or wanton 

conduct. Rather, it means publishing an article 

with a high degree of awareness of its probable 

falsity, or that the Defendants, in fact, 

entertained serious doubts as to the truth of the 

publication. 

INSTRUCTION NO. 13 

The following are examples of the types of conduct 

which constitute malice in publishing a statement 

or allegation: 
1) The story was fabricated by the Defendant; 

or , 

2) The story was the product of the 

Defendants' imagination; or, 

3) The story was based wholly on an 

unverified and anonymous telephone call; or, 

4) The story contains allegations that are so 

inherently improbable that only a reckless 

person would put them into circulation; or, 

5) The story was published despite obvious 

reasons to doubt the veracity of the informant 

upon whom the article was based, or to doubt 

the accuracy of his reports. 

This list is provided to aid you in determining 

whether malice has been shown by the evidence in 

this case. By providing it, the Court does not 

mean to suggest that the list is all-encompassing 

and therefore exclusive, nor does it suggest that 

the evidence supports or does not support the 

presence of any such conduct in this case. 

Instruction No. 11 is taken from New York Times Co. v. 

Sullivan, supra. The instruction is a correct statement of 

the law. Instruction No. 12 is fatally defective in that it 

defines "reckless disregard of the truth", as used in 

Instruction No. 11, as being equivalent to having serious 

doubts about the truth of the statement. Instruction No. 13 

is erroneous in that it seeks to itemize instances of malice 

to the exclusion of other instances which may not have 

occurred to the District Judge. Lists such as the one set 

forth in Instruction No. 13 are seldom appropriate. 

The effect Instruction No. shield 

newspaper where it knows that the source of its information 

is highly suspect but fails to investigate. The newspaper is 

shielded because it failed to investigate and find out that 

certain information was false, choosing rather to close its 

eyes and publish with no actual serj-ous doubts about the 

falsity of the material. Such a rule encourages 

irresponsible journalism. When a newspaper has facts that 
indicate material is highly suspect, it should, and it does, 

have a duty to investigate before publishing. 

Instruction No. 11 correctly stated the law. A 

newspaper is only liable for malice where it publishes with 

knowledge of falsity or with a reckless disregard of the 

truth. 

The erroneous instructions may well have influenced the 

outcome of this case. Schwennesen and his editor had reason 

to believe that Salisbury's statement was highly suspect. 

Schwennesen failed to interview Christian, who would have 

told him that the statement was without any substance or 

merit. The Missoulian published Salisbury's statement 

without fully investigating and therefore, without actually 

knowing the statement was false. Under the instructions of 

the court, the jury could have found that The Missoulian was 

reckless in failing to investigate but nevertheless found 

there was no malice because The Missoulian did not entertain 

serious doubts about the actual truth of the statement. Upon 

remand, the court will instruct upon the proper standard 

without embellishment. 

Appellant further raises error in the District Court's 

ruling which applied the "shield law" to protect 

Schwennesen's notes. Generally, a reporter's sources are 

privileged. The applicable statutes are found in the "Media 

Confidentiality Act", 55 26-1-901, et seq., MCA. Section 

26-1-902, MCA, provides: 

(1) Without his or its consent no person, 

including any newspaper, magazine, press 

association, news agency, news service, radio 

station, television station, or community antenna 

television service or any person connected with or 

employed by any of these for the purpose of 

gathering, writing, editing, or disseminating news 

may be examined as to or may be required to 

disclose any information obtained or prepared or 
the source of that information in any legal 

proceeding if the information was gathered, 

received, or processed in the course of his 

employment or its business. 

(2) A person described in subsection (1) may not 

be adjudged in contempt by a judicial, legislative, 

administrative, or any other body having the power 

to issue subpoenas for refusing to disclose or 

produce the source of any information or for 

refusing to disclose any information obtained or 

prepared in gathering, receiving, or processing 

information in the course of his or its business. 

The above-quoted statute protects a reporter's sources. 

~chwennesen's notes were shielded by this statute until he 

took the witness stand or testified by way of deposition. 

Section 26-1-903(2), MCA, provides: 

(2) If the person claiming the privilege 

voluntarily offers to testify or to produce the 

source, with or without having been subpoenaed or 

ordered to testify or produce the source, before a 

judicial, legislative, administrative, or other 

body having the power to issue subpoenas or 

judicially enforceable orders, he or it waives the 

provisions of 26-1-902. 

Under this provision, Schwennesen waived his privilege 

to keep his notes confidential. Upon retrial the notes are 

subject to discovery if Schwennsesen testifies. 

Judgment in favor of The Missoulian is vacated. The 

case is remanded for a new trial in accordance with the views 

herein expressed. 

We Concur: 
/ 

Justices 4 
Mr. Justice William E. Hunt, Sr., concurring: 

I concur with the majority opinion concerning the jury 

instructions given by the Court and I concur in the reversal 

of the action on that basis. However, I do not agree with 

the majority that the facts are as clear as they present 

them. 

My review of the record indicates that the article 

contains errors and omissions, and in the final analysis 

proved to be false. However, the fact that the article 

ultimately proved to be false does not change my belief that 

Sible has failed to clearly and convincingly prove that the 

article was published with actual malice. As stated in New 

York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 

The constitutional protection does not turn upon 

"the truth, popularity, or social utility of the 

ideas and belief which are offered." (Citation 

omitted. ) 

[Elrroneous statement is inevi.t.able in free debate, 

and . . . must be protected if the freedoms of 

expression are to have the "breathing space" that 

they "need . . . to survive . . ." (Citation 

omitted. ) 

376 U.S. at 271-72, 84 S.Ct. at 721, 11 L.Ed.2d at 701. 

Montana is also committed to the notion that freedom of 

expression should be as broad and unfettered as possible 

recognizing such freedom must be weighed against an 

individual ' s right privacy and reputation. Mont . 

Const., Art. 11, 5 7; Cox v. Lee Enterprises (Mont. 1986), 

Sible raises a number of errors and omissions in the 

article, but especially finds fault with respondents' failure 

to adequately investigate the story, and with the use of the 
words "theft" and "coverup. " Investigatory failures alone 

are insufficient to establish reckless disregard of the 

truth. Instead, Sible must show that the respondents' 

conduct was highly unreasonable and constituted "an extreme 

departure from the standards of investigation and reporting 

ordinarily adhered to by responsible publishers." Curtis 

Publishing Co. v. Butts (1967), 388 U.S. 130, 155, 87 S.Ct. 

1975, 1991, 18 L.Ed.2d 1094, 1111. 

Here, while respondents' investigation could have been 

more thorough, it was not so unreasonable as to constitute an 

extreme departure from responsible publishing standards. 

Prior to his work on this story, Schwennesen had never 

met Salisbury, and knew Sible only by appearance. Sible 

testified he did not believe Schwennesen or anyone else at 

The Missoulian was "out to get him." Schwennesen interviewed 

all the major participants involved except one, a deputy 

named Christian. He attempted to contact Christian twice but 

he was on vacation. Schwennesen did not contact Christian 

after he returned from vacation because by that time, Sible 

had admitted to Schwennesen that he had the smoker. - The 

Missoulian also consulted with its legal counsel prior to 

publication. 

Schwennesen testified that Salisbury appeared to be 

candid, forthright, and "sincerely believed what he was 

telling" him. Further, Schwennesen verified the majority of 

facts in the story. He confirmed that the smoker was missing 

and that Sible admitted having it in his possession. 

Salisbury's investigation into the matter was authorized by 

Sheriff Rierson who later put Sible in charge of the 

detective division. Salisbury's subsequent reprimand, 

transfer to patrol, and ultimate resignation were verifiable 
facts. I do not agree that respondents' investigatory 

failures were so extreme as to amount to reckless disregard 

of the truth. 

Sible argues respondents' use of the words "theft" and 

"coverup" in the article constitutes reckless disregard of 

the truth. None of the sources for the story used those 

words and Sible argues their use by Schwennesen amounted to 

fabrication and publication of a known falsehood. I do not 

agree. 

The owner of the smoker, Eckerson, told Schwennesen that 

he had seen a smoker that looked like his on property he 

believed to be Sihle's. Eckerson further testified that he 

thought Sible had taken his smoker, but did not want to make 

an issue of it. In Salisbury's notarized statement which 

Schwennesen read, he states that a man, Eckerson, told him 

Sible "stole his smokehouse. " Salisbury went to Sible ' s 

residence and "located the smokehouse." Although no one used 

the word "theft," it was implied from the statements and 

interviews Schwennesen had prior to publication. 

The use of the word "coverup" derived from the fact that 

after Sible was placed in charge of the detective division, 

Salisbury was reprimanded for failure to solve cases and his 

demeanor with female complainants. He later transferred to 

the patrol division and ultimately resigned. 

I do not agree that respondents acted in reckless 

disregard of the truth in using the words "theft" and 

"coverup." Instead, the article was based upon interviews 

with the major participants and probable conclusions from 

verified facts. 
Furthermore, I do not believe Schwennesen waived the 

shield law as set out in § 26-1-902, MCA, by taking the 

stand. 

Schwennesen was named defendant in this action. He did 

not file a counterclaim or a cross-claim, but did take the 

stand in his own defense. He testified in great detail as to 

the circumstances involving preparation of the article. 

However, at no time did Schwennesen offer to introduce any 

portion of his notes into evidence, nor did he refer to his 

notes in his testimony to refresh his recollection or bolster 

his testimony. I cannot agree that Schwennesen ever 

"voluntarily offered" to produce or testify concerning the 

contents of his notes. 

The case of La1 v. CBS, Inc. (E.D.Pa. 1982), 551 F.Supp. 

364, Aff'd (1984), 726 F.2d 97 is similar. In that case, a 

federal district court judge held a reporter's notes 

privileged under Pennsylvania's shield law even though the 

reporter had a1read.y revealed her primary sources. In this 

case, Schwennesen revealed his sources and testified 

concerning preparation of the article. He did not 

voluntarily testify concerning his notes or their contents. 

Section 26-1-902, MCA, was written to encourage a free 

and dynamic press by protecting journal-ists and related media 

personnel from compelled disclosure of sources and 

confidential information. It is our duty to uphold 

1-egislative intent whenever possible. Therefore, I would 

conclude that the District Court was correct in refusing to 

compel production of Schwennesen's notes. 

Because I agree that the jury was not properly 

instructed as to actual malice, I concur with the majority in 

reversing and remanding for new trial.