Supreme Court of Pennsylvania.December 14, 1984506 Pa. 304485 A.2d 37411 Media L. Rep. 1841 (Approx. 23 pages)
506 Pa. 304
Supreme Court of Pennsylvania.
Maurice S. HEPPS, et al.
v.
PHILADELPHIA NEWSPAPERS, INC., William Ecenbarger, and William Lambert.
Appeal of Maurice S. HEPPS, et al.
Argued April 9, 1984.Decided Dec. 14, 1984.
Attorneys and Law Firms
**376*308 William H. Lamb, Edwin P. Rome, Ronald H. Surkin, Philadelphia, for appellants.
David H. Marion, Richard L. Cantor, West Chester, for appellees.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION
NIX, Chief Justice.
The instant civil libel action resulted from a series of five “investigative” articles appearing in The Philadelphia Inquirer which purported to link Maurice S. **377 Hepps, General Programming, Inc. and a number of independent corporate entities who operated beer and beverage distributorships as franchises of General Programming, Inc. to certain named “underworld” figures and to organized crime generally. *309 Maurice Hepps, the individual plaintiff-appellant was the principle stockholder of the corporate plaintiff-appellant, General Programming, Inc. (“General”). General owns the trademarks “Thrifty Beverage” and “Brewer's Outlet,” and licenses such marks and provides management and consultation services to licensees. The remaining corporate and individual plaintiff-appellants, approximately nineteen in number, are licensees of General. As a result of these articles, the plaintiff-appellants instituted a civil action in libel against Philadelphia Newspapers, Inc., the publisher of the newspaper in question, and William Ecenbarger and William Lambert, the reporters who prepared the series of articles.
After a six-week trial, the jury returned a general verdict in favor of defendant-appellees. Plaintiff-appellants based their challenge to the judgment rendered below upon the trial court's decision to instruct the jury that the plaintiff bears the burden of proving the falsity of the defamatory publication. This instruction was given after the trial court had ruled that 42 Pa.C.S. § 8343(b)(1) was unconstitutional in that it requires the defendant in a civil libel suit to establish the truth of the defamatory publication by way of an absolute defense to the action. Plaintiff-appellants also appeal the trial court's dismissal of their claim for punitive damages. This direct appeal seeking the award of a new trial is entertained by this Court pursuant to 42 Pa.C.S. § 722(7).
Before examining the United States Supreme Court decisions relating to the impact of the First Amendment upon this area of the law, it is instructive to briefly review the Pennsylvania law of libel as it has developed over the years. The underlying premise concerning the character of the defamed individual is the principle that any man accused of wrong-doing is presumed innocent until proven guilty. The decisions reasoned this principle trancended the criminal law and was equally applicable to the ordinary affairs of life. Corabi v. Curtis Publishing Co., 441 Pa. 432, 448–49, 273 A.2d 899, 907 (1971). Montgomery v. Dennison, supra, 363 Pa. at 263 n. 2, 69 A.2d at 525 n. 2. Based upon this premise we developed the rule that in actions for defamation, the general character or reputation of the plaintiff is presumed to be good. Corabi, supra, 441 Pa. at 449, 273 A.2d at 908;Klumph v. Dunn, 66 Pa. 141, 147 (1870); Hartranft v. Hesser, 34 Pa. 117, 119 (1859); Chubb v. Gsell, 34 Pa. 114, 116 (1859). Since the gravamen of defamation is that the words uttered or written tend to harm the reputation, a consequence of the rule presuming the good reputation of the plaintiff was a presumption of the falsity of the *312 defamatory words. Corabi, supra; Hartranft v. Hesser, supra.
Evidentiary considerations have also been offered to justify the presumption. As noted by this Court in Corabi:
Moreover, it is manifestly the fair thing to place upon the defendant the burden of proving truth: Montgomery v. Dennison, supra [363 Pa.] n. 2 at 263 [69 A.2d 520]; 9 Wigmore, Evidence § 2486, at 276 (3d ed. 1940). Although not invariably so, it is preferable to place the burden of proof upon the party having in form the affirmative allegation and/or upon the party who presumably has peculiar means of knowledge of the particular fact in issue: See Wigmore, Evidence § 2486, supra. For example, in the context of libel, if the written communication accuses plaintiff of being a murderess, a burglar or a prostitute, the defendant knows precisely what particular event he is referring to and the source of his information, whereas the plaintiff, not knowing these facts, would experience great difficulty in refuting these general charges by showing their falsity.
At the outset of the discussion of the United States Supreme Court decisions, it must be remembered that the Court was attempting to define the extent of the freedom of expression provided under the First Amendment, and made applicable to the state through the Fourteenth Amendment, as it relates to civil actions for libel under state law. A *316 subsidiary objective was the formulation of a rule that would satisfy the protection found to be constitutionally required. In the words of that Court, they were struggling “to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz, supra, 418 U.S. at 325, 94 S.Ct. at 3000. Our purpose for reviewing these decisions at this time is to determine whether our rule of state libel law presuming the good reputation of the plaintiffs and setting up truth as a defense to be established by the defendant runs counter to the present interpretations of the First Amendment mandates.
In New York Times, supra, the Supreme Court stated that state law of civil libel “can claim no talismanic immunity from constitutional limitations”. Id. 376 U.S. at 269, 84 S.Ct. at 720. That Court then proceeded to conclude that the central meaning of the First Amendment, enforced upon **381 the states through the Fourteenth Amendment, required a privilege of fair comment and honest mistake of fact. The majority held that a public official is prohibited “from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not”.3Id. at 279–80, 84 S.Ct. at 725–26.
In the context of criticism of public officials the Court rejected the argument that the availability of the defense of truth, where the burden of establishing it is on the defendant, satisfies the constitutional concerns involved.
Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to *317 make only statements which “steer far wider of the unlawful zone”. (citations omitted) The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.
Although New York Times made it clear that no longer would the former view that libel was speech not protected by the First Amendment be without exception, many questions were still left unanswered by that decision as to the full extent of the constitutional privilege developed therein. The New York Times decision did not expressly state that the constitutional protection required the shifting of the burden of proving falsity to the plaintiff in establishing a prima facie case. Nor did the reasoning of that decision necessarily implicitly compel such a result. See Corabi, supra, 441 Pa. at 468 n. 22, 273 A.2d at 917 n. 22. In New York Times, the Court had no occasion to consider the question of who should bear the burden of proving falsity when it is in fact in issue in the litigation. To the contrary, the Court in New York Times was concerned with stressing “[t]hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive”. Id. 376 U.S. at 271–72, 84 S.Ct. at 721–22.4
The major question commanding the attention of the Court in subsequent decisions was the extent to which *318 the New York Times rule should apply. In 1967, the Court extended the New York **382 Times rule to public figures in Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In those cases the plaintiffs were not public officials as was the case in New York Times, but rather individuals who had attracted public attention either through the positions they held in society or their activities in affairs of public concern.5 However, in Rosenbloom, supra, the Court was divided on whether the standard of knowing or reckless falsity applied where the alleged defamatory statements related to a private individual in a matter of public or general concern.6
Instant appellee concedes that up to this point the constitutional protection identified in New York Times had not *319 been extended to the private citizen seeking redress for an alleged libel under state law. Thus the state could, without reference to the Constitution, assign the burden to prove truth upon the defendant in a private figure libel case. Brief of Appellees at 13. We agree with this concession and add, as previously noted, even if the constitutional protection had been found applicable, it was still unclear up to that point whether placing the burden of proving truth upon the defendant would have been offensive to such a Constitutional mandate. Nevertheless, appellee relies, as did Judge Sugerman, upon the Court decision in Gertz as the basis for the view that the First Amendment is here applicable and that placing the burden upon the defendant to prove truth runs afoul of the protection afforded free expression.
C.
In approaching the issue in Gertz that the Court was unable to resolve in Rosenbloom, they began by recognizing that the difference between the public official and public figure on the one side and the private individual on the other warranted a different approach in the two situations. The Court expressed the belief that “private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.”7Gertz, supra, 418 U.S. at 345, 94 S.Ct. at 3009. After acknowledging the **383 persisting antithesis that must *320 necessarily exist between freedom of speech and press and libel actions,8 the Court nevertheless concluded that “the states should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual.”9 Acknowledging the legitimacy of the concern of the New York Times Court to assure the freedoms of speech and press that “breathing space” essential to their fruitful exercise, see NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Gertz Court held that “the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to the private individual” provided the state did not create a scheme that imposed liability without fault. Gertz, supra, 418 U.S. at 347, 94 S.Ct. at 3010.10
In reaching this conclusion, the Gertz Court stated that it believed its rule would insulate the private citizen from the stringent standard of actual malice, and yet shield the media from the rigors of strict liability.11 The Court stated that it had chosen this approach “in recognition of the *321 strong and legitimate state interest in compensating private individuals for injury to reputation.” Id. at 348, 94 S.Ct. at 3011.
However, the Court found that this compelling state interest did not extend beyond compensation for actual injury.
[W]e hold that the states may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.
The Court was of the view that the “largely uncontrolled discretion” conferred on juries in presumed damages and the invitation in these instances to juries “to punish unpopular opinion” did offend constitutionally protected free expression. Concluding that presumed damages constituted “gratuitous awards of money damages far in excess of any actual injury,” id. at 349, 94 S.Ct. at 3011, the Court reasoned that the state interest in these instances was insufficient to permit recovery unless, at a minimum, at least, the New York Times standard is met. Following the same general reasoning as employed in the case of presumed damages, the Court reached the same result for punitive damages.
II.
A.
It is apparent from Gertz and the cases following it, **384 Herbert v. Lando, supra; Time, Inc. v. Firestone, supra;*322 that the only restraint upon the states mandated by the First Amendment in civil actions for defamatory falsehood brought by a private figure for compensatory damages is that they may not impose liability upon the defendant without fault. As early as 1939 this Court stated, in Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 8 A.2d 302 (1939), that liability for defamatory falsehood cannot be imposed without fault. The defendant in that case was a broadcasting company that rented its time and facilities to an advertising corporation for the transmission of a series of sponsored radio programs over one of its networks. A script for each program was prepared in advance and submitted to the broadcaster and followed exactly by the performers at rehearsals where it was approved. All participants in the program in question were employed and paid by the advertising company which had rented the time slot. When the program was over one-half completed, one of the participants interpolated an extemporaneous remark.
The trial court found that the interjected “ad lib” was “slanderous per se” and ruled that the defendant's liability was absolute though it was without any fault. In rejecting the trial court's acceptance of a theory of strict liability, Chief Justice Kephart noted:
In Pennsylvania, the principle of liability without fault for injuries to the person has received scant consideration. The great body of our law of liability for personal injuries is that of liability through fault; liability based almost exclusively on wrongful conduct.
In discussing other areas where some states had imposed strict liability, reference was made to those jurisdictions that were then extending a theory of strict liability to publishers of newspapers for defamatory publications, the Court stated:
Considering the rule of supposedly absolute liability imposed in some jurisdictions on the publisher of a newspaper for his defamatory publications, and this is the rule *323 here chiefly relied on, a close examination of the Pennsylvania law will show that our rule is not one of absolute liability, but rather, of a very strict standard of care to ascertain the truth of the published matter. (Citations and footnote omitted)
We are mindful that the former conditional privileges recognized under our law have lost their significance in the wake of New York Times and Gertz. If a private figure plaintiff is to maintain any cause of action at all, he must minimally establish the negligence on the part of the publisher. In so doing, “he has by that very action proved any possible conditional **385 privilege was abused.” Restatement (Second) of Torts, Topic 3, Title A, Special Note, at 259 (1977); see also Nevada Independent Broadcasting Corp. v. Allen, 99 Nev. 404, 664 P.2d 337, 342–343 (1983).
We are satisfied that Pennsylvania law makes a constitutionally acceptable accommodation between the freedom of expression **386 required by the First Amendment and our law of civil libel for compensatory damages brought by a private individual to redress defamatory falsehood. Strict liability is a policy determination that injury flowing from a set of circumstances will be compensable regardless of the blamelessness of the conduct of the defendant. The prohibition of Gertz restrains a state from attempting to protect its private citizens from defamatory falsehood causing injury to reputation by allowing compensatory damages without predicating the recovery on a *326 showing of some wrongdoing on the part of the publisher. To assess the liability solely on the basis that the published defamatory utterance was erroneous would offend the “breathing space” that free debate requires. As we understand the thrust of the Gertz reasoning, it would not offend the principles articulated therein to place the burden of proving truth upon a defendant as long as the recovery is dependent upon the plaintiff's ability to establish the defendant's willful or negligent conduct in publishing the defamatory matter.
Our conclusion is bolstered by the fact that the Gertz holding adopted the view of the dissenters in Rosenbloom, supra, 403 U.S. at 64, 91 S.Ct. at 1829 (Harlan, J., dissenting); id. at 86–87, 91 S.Ct. at 1840–1841 (Marshall, J., dissenting, joined by Stewart, J.), that the States are free to develop their own standards of liability for media defendants so long as they do not impose liability without fault. See Gertz, supra, 418 U.S. at 339, 347, 94 S.Ct. at 3006, 3010. In Rosenbloom, Pennsylvania libel law was under scrutiny and the dissenters were satisfied that their standard had not been violated. Although it was clear that the Rosenbloom Court was aware of the Pennsylvania requirement placing the burden of proving truth upon the defendant, nonetheless, neither dissenting opinion equated that allocation with strict liability. In fact, Justice Marshall plainly stated that Pennsylvania, unlike many other jurisdictions, did not apply a liability-without-fault standard. Id. 403 U.S. at 87 n. 13, 91 S.Ct. at 1841 n. 13 (Marshall, J. dissenting). Moreover, the plurality which would have required the actual malice standard at no point suggested that Pennsylvania law attempted to impose liability without fault.
What the appellee is in essence arguing is that, even though the media publishes or reports maliciously or negligently a defamatory statement injurious to the reputation of a private citizen, it should be insulated from liability unless the plaintiff can affirmatively demonstrate the falsity of the statement. We find nothing in the Supreme Court *327 decisions that would suggest such a result. The “breathing space” requirement of the First Amendment has not been extended, nor do we believe it can be reasonably extended, to condone or to encourage irresponsible conduct by the media in its exercise of informing the public of newsworthy events. Nor can we conceive of a legitimate constitutionally protected interest in condoning the media's malicious or negligent discharge of this responsibility. Free debate will not be encouraged by allowing it to become the forum for malicious or negligent abuse of the reputation of those involved in the controversy. The right to critize must carry some degree of responsibility, particularly where it may jeopardize the reputation of a private citizen.
We note further that a media defendant in a civil libel action is given even greater protection under our statutory law. In addition to the privilege to communicate matters of public interest and concern without fear of liability for erroneous information disseminated without negligence or malice, a newspaper publisher is privileged to withhold the identity of sources of information. The Pennsylvania Shield Law, 42 Pa.C.S. § 5942(a), provides that:
(a) General rule.—No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing **387 news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.
As a consequence of this greater protection to the media defendant provided by the “shield law”, the plaintiff in a civil libel action is restricted in his ability to prove the falsity of the defamatory statement. He is denied access to the sources of information on which the statement is based. The defendant, who does possess that information is therefore in a better position to prove the truth of the defamatory statement. Thus this additional protection to a media defendant and the resulting impediment imposed upon the plaintiff in seeking to establish the falsity of the statements provides a further justification for maintaining our current practice of requiring the defendant to prove truth in defense of such a suit.
C.
For the foregoing reasons we hold that in a libel suit brought by a private individual for compensatory damages resulting from the defamatory material, the presumption of falsity remains and the defendant has the option of proving truth as an absolute defense to the action. The trial court's instruction to the contrary was error and the resulting verdict cannot be allowed to stand. Since the verdict was a general one we are unable to ascertain whether the jury found for the defendants because of its conclusion that the plaintiff had failed to establish the falsity of the defamatory statements or whether the verdict reflects a finding that defendant was not negligent in publishing the material. The latter reason, of course, would have been a proper basis for the verdict, but the former reason is not in accordance with our law. Accordingly, the judgment of the trial court is reversed and a new trial is awarded as to the claim for compensatory damages.
*329 III.
Since we are remanding the cause for a new trial on compensatory damages, it is also necessary to review appellant's assertion that the trial court erred in withdrawing from the jury's consideration the punitive damage issue. The trial court ruled that the appellant had presented insufficient evidence of the reporter's “actual malice” at trial so as to raise a triable issue of fact. We agree.
We should note that the Gertz decision has raised considerable controversy concerning whether it foreshadows the total abolition of punitive damage awards in defamation cases.15 In holding unconstitutional the awarding of presumed or punitive **388 damages where defamatory publications are negligently published, the Gertz Court reasoned that the potential for large jury verdicts, completely unrelated to the actual injury suffered by the victim, might have a chilling effect or act as a prior restraint of free expression. Gertz, supra, 418 U.S. at 350–51, 94 S.Ct. at 3012–13. Further, the Court surmised that the doctrine of presumed damages and the unabridged discretion conferred upon juries to award punitive damages, bearing no relationship to the injury suffered, invites juries to punish the expression of unpopular opinion rather than effectuate any legitimate social goal. Id. at 350–51, 94 S.Ct. at 3012–13. Nonetheless, a number of courts have considered whether Gertz presaged the abolition of punitive damages and have concluded that it did not.16 We are satisfied that under the *330 present law as articulated by the United States Supreme Court there has not been a sufficiently definitive directive to cause us to abandon the long standing practice in this jurisdiction of allowing punitive damages in the appropriate case.
“Actual malice” can be established either by proving the publication was made with the knowledge of the falsity of its content or with reckless disregard of whether it was false or not. Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966); New York Times Co. v. Sullivan, supra. When the first alternative is relied upon, the plaintiff must show not only the falsity of the statement but, in addition, it is the plaintiff's responsibility to establish the defendant's knowledge of that falsity at the time of publication.
Accordingly, the order of the trial court is reversed and a new trial is awarded. The new trial will be confined to a determination of defendant's liability and the assessment of compensatory damages if the liability issue is decided in favor of the plaintiff.
LARSEN and McDERMOTT, JJ., did not participate in the consideration and decision of this case.
Another rationale offered to support the presumption of the good character or innocence of the plaintiff was the view that it would be unduly prejudicial to the defendant to permit the plaintiff to prove his general good character in the plaintiff's case-in-chief. In Hartranft v. Hesser, 34 Pa. 117, 119 (1859), it was stated that the plaintiff is not permitted to prove his general good character because to permit such evidence would be to take advantage of the defendant who was unapprised of its nature or to raise a collateral issue not made by the pleadings in the case. Id. Thus, character evidence in defamation cases follows the general rule that “In civil proceedings, evidence of character is inadmissible unless directly in issue or involved in the nature of the proceedings, and even then evidence of good character is not admissible unless and until it is attacked by evidence to the contrary, it being presumed to be good in absence of proof that it is bad.” 1 G. Henry, Pennsylvania Evidence § 152 (1953) (emphasis added) citing Costello v. Long, 62 Pa.Super. 13, 17 (1915); Burkhart v. North American Co., 214 Pa. 39, 42, 63 A. 410, 411 (1906); Clark v. North American Co., 203 Pa. 346, 353, 53 A. 237, 239 (1902); Chubb v. Gsell, 34 Pa. 114, 116 (1859). See also 22 P.L.E. Libel and Slander § 57 (1959).
However, in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), Justice White speaking for the Court again stated that “the prevailing view is that truth is a defense”. Id. at 489, 95 S.Ct. at 1043. Thus as to whether the communications intended to be covered by the Times rule, required proof of falsity as part of the plaintiff's prima facie case under the New York Times decision is at best unclear and debatable. Moreover, the subsequent restatement of the Times holding in the cited cases can arguably be classified as loose characterizations and thus not determinative of the question as to where the burden of proving falsity should lie. See Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond, 61 Va.L.Rev. 1349, 1383–84 (1975).
The United States Supreme Court has interpreted the First Amendment as affording private individuals a greater protection from defamation than both public officials and public figures because public figures and officials enjoy a greater opportunity to reply to libelous statements and they have also purposefully assumed a position in society which invites attention and comment. By voluntarily assuming such a role in society, public figures and officials relinquish, to a degree, their right to privacy. Gertz, supra, 418 U.S. at 345, 94 S.Ct. at 3009.
The Court noted that since libel is based upon the content of the speech, it limits the freedom of the publisher to express certain sentiments unless the publisher is willing to take the risk of the defense of a civil action in libel. Gertz, supra at 342, 94 S.Ct. at 3008.
In this context, the Court noted that the extension of the New York Times test proposed by the Rosenbloom plurality would “abridge this state interest [protecting private citizens from injury resulting from defamatory falsehood] to a degree that we find unacceptable”. Gertz, supra at 346, 94 S.Ct. at 3010.
The Gertz Court characterized a rule of strict liability as one which compels a publisher or broadcaster to guarantee the accuracy of his factual assertions. Gertz, supra at 340, 94 S.Ct. at 3007. The Court stated that “[a]llowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties.” Id. (emphasis added).
As a caveat to this aspect of the Gertz standard, the Court cautioned:
... At least this conclusion obtains where, as here, the substance of the defamatory statement “makes substantial danger to reputation apparent.” This phrase places in perspective the conclusion we announce today. Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential. Cf. Time, Inc. v. Hill, 385 US 374 [87 S.Ct. 534, 17 L.Ed.2d 456] (1967). Such a case is not now before us, and we intimate no view as to its proper resolution.
Id. at 348, 94 S.Ct. at 3011 (emphasis added; footnote omitted).
Since, however, the defamatory character of the articles in question in this appeal was apparent, the above caveat of Gertz is not here applicable.
Moreover, the requirement of fault has been codified in Pennsylvania law since 1901. 42 Pa.C.S. § 8344 (originally enacted in Act of April 11, 1901, P.L. 74, § 3, 12 P.S. § 1583) provides:
Malice or negligence necessary to support award of damages
In all civil actions for libel, no damages shall be recovered unless it is established to the satisfaction of the jury, under the direction of the court as in other cases, that the publication has been maliciously or negligently made, but where malice or negligence appears such damages may be awarded as the jury shall deem proper.
In a rather circuitous argument, appellees contend that falsity is inextricably bound up with proof of fault. Appellees assert that to prove fault the plaintiff in fact must demonstrate the falsity of the matter. While in some instances the plaintiff may elect to establish the patent error in the material to demonstrate the lack of due care in ascertaining its truth, it does not necessarily follow that negligence of the defendant can only be shown by proving that the material is false. A plaintiff can demonstrate negligence in the manner in which the material was gathered, regardless of its truth or falsity. In such instance the presumption of falsity will prevail unless the defendant elects to establish the truth of the material and thereby insulate itself from liability. Where it is necessary to prove falsity to establish the negligence of the defendant, it is then the burden of the plaintiff to do so. This would appear to be a situation contemplated by former Chief Justice Roberts in his concurring opinion in Moyer v. Phillips, 462 Pa. 395, 404, 341 A.2d 441, 445 (1975) (Roberts, J., concurring, joined by Nix, J.). There it is suggested that “as a practical matter, the plaintiff will find it necessary to prove the falsity of the statement in order to establish the necessary element of fault; to this extent, the defendant is relieved of the burden of proving truth as a defense.” Id. at 407–08, 341 A.2d at 447. That proposition will not, of course, hold true in all cases. Where negligence can be established without a demonstration of the falsity of the material, there is no additional obligation upon the plaintiff to prove the falsity of the material.
It must be noted that the shield law is designed to protect the confidentiality of the source; it was never intended to be interpreted as insulating the publisher from its negligence or actual malice.
Other commentators have concluded that Gertz did not in itself abolish punitive damages but merely limited their availability. See, e.g., Frakt, The Evolving Law of Defamation: New York Times Co. v. Sullivan to Gertz v. Robert Welch, Inc. and Beyond, 6 Rut.-Cam.L.J. 471, 507 (1975); Comment, 6 Loyola University Law J. 256, 267 (1975).