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Common law malice is presumed from the character of the defamatory statement and has nothing to do with the defendant's state of mind.
On December 21, 1988, Pan Am Flight 103 exploded in mid-flight over Lockerbie, Scotland, causing the death of everyone on board. A terrorist's bomb was then, and is now, widely suspected to be the source of that explosion. On April 20, 1992, defendant-appellee, Time, Inc. ("Time"), published a cover story entitled "The Untold Story of Pan Am 103." The article purported to debunk the then-prevailing theory that the government of Libya had sponsored the attack on Pan Am 103. Instead, the article posited that a Palestinian group, with connections to Syrian drug traffickers, had targeted Pan Am 103 to eliminate several of the passengers who were members of a United States counter-terrorism team attempting to rescue United States hostages in Lebanon. The article claims that these passengers had discovered an unsavory, covert relationship between the Syrian drug traffickers and a unit of the United States Central Intelligence Agency and intended to expose it upon their return to the United States. The article further stated that an American agent, David Lovejoy, had become a double agent and had leaked information regarding the team's travel plans to forces hostile to the United States. The article included a photograph of a man. The man in the photograph, however, is not Lovejoy but Michael Schafer, the plaintiff-appellant in this case. Time's article, therefore, erroneously identified Schafer, then working in his family's janitorial business in Austell, Georgia, both as a traitor to the United States government and a player in the bombing of Pan Am 103. Upon discovering his picture in the magazine, Schafer demanded and eventually received a retraction from Time. Schafer filed suit against Time, making claims under Georgia's libel laws. A jury returned a verdict in Time's favor, finding no liability for the error. After filing a motion for a new trial, which the district court denied, Schafer filed this timely appeal. Schafer challenged a number of the district court's evidentiary rulings as well as the court's recharge to the jury on the definition of "malicious" under Georgia's libel statute. He also challenged both the district court's refusal to instruct the jury that the republication of a libelous depiction constitutes libel under Georgia law and the court's decision not to charge the jury on Georgia's retraction statute.
Did the district court err in instructing the jury that before Schafer could recover for libel he had to show that Time made a "statement deliberately calculated to injure"?
In reversing the judgment and remanding the case for a new trial, the court held that the trial court's instruction, although literally accurate, failed to properly guide the jury in its deliberations and likely resulted in a legally misguided verdict. The court found that the natural and plain connotation of the phrase "deliberately calculated to injure" suggested that the jury was required to find that Time subjectively intended to injure Schafer as a prerequisite for liability. The court observed that the charge carried with it a powerful tendency to mislead and confuse, and that the charge, as modified by the re-charge, adequately focused the jury's attention on the proper factual issue.