Hunt v. Lobby (720 F.2d 631, 1983)

ALBERT J. HENDERSON, Circuit Judge:

The appellant, Liberty Lobby, publishes the Spotlight, a weekly newspaper distributed nationally by subscription. E. Howard Hunt, the appellee, brought this action against Liberty Lobby in the United States District Court for the Southern District of Florida seeking damages for libel based upon an article appearing in the August 14, 1978 edition of the Spotlight. The jury returned a verdict for Hunt in the amount of $100,000.00 compensatory and $550,000.00 punitive damages. On appeal Liberty Lobby makes several assignments of error including insufficiency of the evidence of actual malice, incorrect jury instructions, erroneous admission of certain affidavits into evidence and improper venue. Because the sufficiency of the evidence is vigorously contested, we begin with a thorough description of the pertinent facts.

The front page of the August 14, 1978 Spotlight announced in bold face type: “CIA TO NAIL HUNT FOR KENNEDY KILLING”. The headline referred the reader to page four for the details. On page four a larger headline stated “CIA TO ‘ADMIT’ HUNT INVOLVEMENT IN KENNEDY SLAYING.” A biography of Victor Marchetti, the author of the article, appeared on this page. This brief background of the author explained that Mar-chetti “has been involved in U.S. Intelligence activities for almost 20 years, 14 years of that time being with the CIA, the last three years of which he was staff assistant to Richard Helms. He is the author of ‘The CIA and the Cult of Intelligence’ and ‘The Rope Dancer.’ ”

The text of the article revealed an elaborate plot within the Central Intelligence Agency (CIA-) to frame Hunt for the Kennedy assassination. We quote the pertinent passages at length in order to avoid any distortion of the article’s meaning:

A few months ago, in March, there was a meeting at CIA headquarters in Langley, Va., the plush home of America’s super spooks overlooking the Potomac River. It was attended by several high-level clandestine officers and some former top officials of the agency.

The topic of discussion was: What to do about recent revelations associating President Kennedy’s accused assassin, Lee Harvey Oswald, with the spy game played between the U.S. and the USSR? (SPOTLIGHT, May 8, 1978.) A decision was made, and a course of action determined They were calculated to both fascinate and confuse the public by staging a clever ‘limited hangout’ when the House Special Committee on Assassinations (HSCA) holds its open hearings, beginning later this month.

A ‘limited hangout’ is spy jargon for a favorite and frequently used gimmick of the clandestine professionals. When their veil of secrecy is shredded and they can no longer rely on a phony cover story to misinform the public, they resort to admitting sometimes even volunteering — some of the truth while still managing to withhold the key and damaging „ , . facts m the case. The public, however, is ,, ... , , ,, .4, usually so intrigued by the new information that it never thinks to pursue the matter further.

,ir , ,, „. , , , We will probably never find out who masterminded the assassination of JFK- or why. There are too many powerful special interests connected with the conspiracy for the truth to come out even now, 15 years after the murder.

But during the next two months, according to sensitive sources in the CIA and on HSCA, we are going to learn much more about the crime. The new disclosures will be sensational, but only superficially so. A few of the lesser villains involved in the conspiracy and its subsequent coverup will be identified for the first time — and allowed to twist slowly in the wind on live network TV. Most of the others to be fingered are already dead.

But once again the good folks of middle America will be hoodwinked by the government and its allies in the establishment news media. In fact, we are being set up to witness yet another coverup, albeit a sophisticated one, designed by the CIA with the assistance of the FBI and the blessing of the Carter administration.

A classic example of a limited hangout is how the CIA handled — and manipula!-ed-the Church Committee’s investigation of two years ago. The committee learned nothing more about the assassinations of foreign leaders, illicit drug programs, or the penetration of the news media than the CIA allowed it to discover. And this is precisely what the CIA is out to accomplish through HSCA with regard to JFK’s murder.

THEY’LL HANG HUNT

Chief among those to be exposed by the new investigation will be E. Howard Hunt, of Watergate fame. His luck has run 0ut, and the CIA has decided to sacri-fjce him to protect its clandestine services. The agency is furious with Hunt for having dragged it publicly into the Nixon mess and for having blackmailed it after he was arrested.

_ ., TBesides, Hunt is vulnerable — an easy target, as they say m the spy business TT.& ’ ,. J i . , , , ^ reputation and integrity have been destroyed. The death of his wife Dorothy, m a mysterious plane crash m Chicago still disturbs many Peo/e’ esPecially smce tbe,re wfre rum automatically ensure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in £ood faltb- Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 267-68 (footnote omitted), Since St. Amant, several courts have held that evidence which shows that the statement was inherently implausible or that there were obvious reasons to doubt the veracity of the informant is relevant to establishing actual malice. See, e.g., Gertz v. Robert Welch, Inc., 680 F.2d 527, 538 (7th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983); Dickey v. CBS, Inc., 583 F.2d 1221, 1229 (3d Cir. 1978); Hotchner v. Castillo-Puche, 551 F.2d 910, 913-14 (2d Cir.1977) cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). “[A] publisher cannot feign ignorance or profess good faith when there are clear indications present which bring into question the truth or falsity of defamatory statements.” Gertz, 680 F.2d at 538 (quoted in Fitzgerald v. Penthouse International, Ltd., 691 F.2d 666, 670 (4th Cir.1982)).

Our examination of the appellate court opinions also reveals that actual malice may be inferred in another circumstance in which the defendant protests his innocence. In Buckley v. Littell, 539 F.2d 882 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977), the author published a statement to the effect that William F. Buckley could be sued for libel. At the trial, the author suggested that he did not intend to label Buckley a libeler— that his metaphor was meant only to criticize Buckley’s “hounding” of certain people. The Second Circuit upheld a finding of actual malice, reasoning that the clear meaning to be inferred from the publication was that the author accused Buckley of making libelous statements. Id. at 896. Thus, the trial court was free to reject the author’s assertion that he did not intend the statement to be interpreted in that manner. Similarly, in Montandon v. Triangle Publications, Inc., 45 Cal.App.3d 938, 120 Cal. Rptr. 186, cert. denied, 423 U.S. 893, 96 S.Ct. 193, 46 L.Ed.2d 126 (1975), the California appellate court found that actual malice had been established when the defendant published an article containing a defamatory statement, even though the publisher testified that he did not interpret it in that manner. The defendants in Montandon edited a press release for a television show on which the plaintiff was scheduled to appear. The description of the upcoming program circulated in the press release originally stated: “FRIDAY, SEPTEMBER 20TH, 10:30 P.M., PAT MICHAELS SHOW, FROM PARTY-GIRL TO CALL-GIRL? How far can the ‘party-girl’ go until she becomes a ‘call-girl’ is discussed with T-V personality Pat Montandon, author (‘How to be a Party-Girl’) and a masked-anonymous prostitute!” After the defendants edited this report, the following excerpt was printed in the TV Guide: “Pat Michaels— Discussion, ‘From Party Girl to Call Girl.’ Scheduled guest: TV Personality Pat Mon-tandon and author of ‘How to Be a Party Girl.’ ” 45 Cal.App.3d at 942-43, 120 Cal. Rptr. at 188. The defendants claimed that they did not believe that the program note labeled Ms. Montandon a call girl. The court affirmed a finding of actual malice, stating:

This testimony flies in the face of reason, as a reading of the program note reveals

The action by the TV Guide staff showed a reckless disregard of whether the statement published was true or false, because the staff was aware that the true facts, as stated in the press release, were that Pat Montandon was not a call girl but would be appearing on a show with a call girl; and a staff decision was made to leave out crucial facts in rewriting the release, thereby implying that plaintiff was a call girl. This is proof of convincing clarity to support the jury’s verdict that'the article was published not in good faith, but with actual malice.

Id. 45 Cal.App.3d at 943-44,120 Cal.Rptr. at 189. Under the Montandon decision, an inference of actual malice can be drawn when a defendant publishes a defamatory statement that contradicts information known to him, even when the defendant testifies that he believed that the statement was not defamatory and was consistent with the facts within his knowledge.

With these principles in mind, we conclude that Hunt met his burden of proving with convincing clarity that Liberty Lobby published the article with actual malice. The jury found that the article was both libelous and false and Liberty Lobby does not challenge that determination. Thus, assuming the falsity of the article, we turn to the evidence before the jury that the appellant knew it was false or entertained serious doubts about its truth.

First, there is evidence that Liberty Lobby had reason to, and in fact did, question Marchetti’s neutrality in reporting on CIA matters. The article disclosed a CIA scheme to mislead Congress and the American public apparently to cover up the role that it purportedly played in the assassination of President Kennedy. Needless to say, it displayed a highly inflammatory opinion of the agency. Carto testified that he knew Marchetti had been involved in litigation with the CIA and that fact “absolutely” caused him to question what Marchetti wrote about the CIA. This evidence provides a clear and compelling inference that Liberty Lobby had “obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 268. See also, Gertz, 680 F.2d at 538. Although Carto said he did question Marchetti “on the manuscript,” the only reference thereto was the notation “Confirm this!” That remark apparently referred to Hunt’s lawsuit against the authors of “Coup d’etat in America” concerning his “alibi.” Thus, the jury could reasonably conclude that Carto did not follow up on his doubts about Marchetti’s neutrality prior to publication.

Furthermore, it is clear that the article was not “hot news.” Neither Carto nor Tucker could remember when the article was received, but Tucker did not regard it as a “hot” item and had sufficient time to check it out before publication. While Mar-chetti’s undisclosed sources would have been difficult if not impossible to verify, other information contained in the article was capable of confirmation. Liberty Lobby only sought confirmation of the details of Hunt’s lawsuit and the “truth” of his “alibi.” Carto obviously had a question about Marchetti’s information. However, he could not remember what, if anything, Tucker found out, although he said he was satisfied that “it was true.” Tucker was equally ambiguous, indicating that he might have called a newspaper in the city in which the action was pending (although he never states affirmatively that he did so), or that he asked Marchetti about it, or that he looked in the telephone book to see if the Chinese grocery where Hunt allegedly said he was shopping in 1963 existed in 1978. When a story is not “hot news,” “actual malice may be inferred when the investigation ... was grossly inadequate in the circumstances.” Vandenburg I, 441 F.2d at 380. We believe that the jury could properly decide that Liberty Lobby’s “investigation” did not pass muster and, accordingly, infer actual malice therefrom.

Next, the jury could have also inferred actual malice from the inherent improbability of the story. St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 268. Of course, Carto and Tucker said they believed the information was plausible. However, the jury was under no obligation to credit this testimony. Id. The jury certainly could have determined that “only a reckless man” would circulate a story announcing that the CIA was going to cover up its role in the Kennedy murder by admitting that E. Howard Hunt was involved without official permission. Contrary to the appellant’s assertion, Hunt’s testimony that he thought the story could be true does not negate the inference to be drawn from inherent improbability. We firmly believe that even if Hunt thought the CIA might engage in such conduct, a jury could constitutionally view the story as inherently improbable.

Finally, we. think that the jury could infer actual malice from the headlines. The original title submitted by Marchetti was “The JFK Assassination: New Developments and Another Coverup.” Tucker substituted the following headlines and subheadlines: “CIA to Nail Hunt for Kennedy Killing,” “CIA to ‘Admit’ Hunt Involvement in Kennedy Slaying,” “They’ll Hang Hunt,” “Posing as a Bum.” According to Tucker, he thought the choice of headlines in this instance was a “flareful thing” and he would have “killed” the headlines if anyone told him that the Spotlight was saying “Hunt killed Kennedy.” Carto and Tucker each professed to believe that the headlines conveyed the contents of the story. Tucker’s stated purpose in redrafting the headlines was to explain that the CIA was going to “blame” Hunt for the murder.

Although Liberty Lobby insists that the headlines were only meant to reveal a plan to falsely accuse or frame Hunt, it is obvious that the headlines could have conveyed the impression to a fact finder that Hunt was involved in the assassination. Viewing the headlines alone, the jury could have reasonably found that the Spotlight simply was reporting a truthful accusation by a federal government agency. Tucker’s reference to the headlines as a “flareful thing,” indicates, contrary to his testimony, that he knowingly chose language that was subject to a false and highly defamatory interpretation. Under these circumstances, a finding of actual malice is constitutionally permissible. Cf. Buckley, 539 F.2d at 896; Montandon, 45 Cal.App.3d at 934-44, 120 Cal.Rptr. at 189.

The sum total of the inferences of actual malice properly drawn from Hunt’s proof constitutes clear and convincing evidence to support the jury’s determination. The jury simply was not required to believe the appellant’s professions of good faith. Hunt successfully compiled enough evidence to satisfy the constitutional restrictions placed upon public figures in libel litigation. We are conscious of the relatively high standard of proof required in such cases, but a jury verdict based on evidence which satisfies that burden can, and should, withstand strict appellate review.

Jury Instructions

The appellant assigns as error the district court’s instructions to the jury on actual malice, punitive damages and respondeat superior.

A. Responsible Publisher Instruction.

[H] After the district judge instructed the jury on Hunt’s burden to prove actual malice by clear and convincing evidence, he stated:

A public figure may recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigating and reporting ordinarily adhered to by responsible publishers.

Tr. 515. Liberty Lobby did not object to this instruction. Elsewhere in the court’s charge, appears a more detailed explanation of the proof of actual malice. In that portion, no reference was made to the standards ordinarily adhered to by responsible publishers.

The appellant maintains that this “responsible publisher” charge permits recovery by a public figure based on an insufficient showing of actual malice. The instruction was requested by Hunt with a citation to Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Curtis Publishing, Justice Harlan’s plurality opinion contained that language as a suggested standard for public figure, as opposed to public official, cases. However, a majority of the court in Curtis Publishing did not endorse this instruction. Four justices concurred in Chief Justice Warren’s separate opinion which rejected the responsible publisher standard, holding that public figures must make the same showing as public officials — proof that the publisher in fact knew the material was false or that he in fact entertained serious doubts as to its truth. The cases since Curtis Publishing have disapproved an objective standard such as that suggested by Justice Harlan and given in this case. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Long v. Arcell, 618 F.2d 1145 (5th Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981); Ryan v. Brooks, 634 F.2d 726, 731 (4th Cir.1980). “The test of actual malice is not whether the defendant acted as a reasonable publisher would have acted under the circumstances. Rather, the inquiry focuses on the defendant’s state of mind at the time of publication.” Long, 618 F.2d 1147.

Thus, it is clear to us that the instruction taken from the Curtis Publishing plurality opinion was error. In spite of this infirmity, Liberty Lobby did not object to it as required by Rule 51 of the Fed.R.Civ.P. A remand for a new trial is necessary only if the error is so fundamental that the failure to recognize it will result in a miscarriage of justice. See Barnett v. Housing Authority of the City of Atlanta, 707 F.2d 1571 at 1580 (11th Cir.1983); Patton v. Archer, 590 F.2d 1319, 1322 (5th Cir.1979); Delancey v. Motichek Towing Service, Inc., 427 F.2d 897, 901 (5th Cir.1970).

Although the jury instructions in this case did contain the proper subjective guidelines for recovery by a public figure, they also authorized the jury to find liability based upon an improper objective standard. Much of Hunt’s evidence centered on whether the appellant’s conduct was unreasonable. Indeed, Hunt’s opinion that, based upon his experience as a journalist, the appellant’s actions were irresponsible was admitted into evidence. Based on this record, the jury could have imposed liability because it found that the appellant engaged in “highly unreasonable conduct constituting an extreme departure from the standards of investigating and reporting ordinarily adhered to by responsible publishers,” or it could have found that the appellant knew that the article was false or had serious doubts about its truth. We have no way of knowing the premise for this judgment. The Supreme Court has repeatedly cautioned that the preservation of the freedom of the press requires public figures and public officials to prove subjective actual malice. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Because we do not know whether the jury followed the constitutionally mandated criteria, a new trial will be necessary. See Somer v. Johnson, 704 F.2d 1473, 1478 (11th Cir.1983) (new trial is required when both proper and improper instructions given because jury could have followed incorrect rule); Johnson v. Bryant, 671 F.2d 1276, 1281 (11th Cir.1982). Cf. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (new trial mandated when jury charges permitted recovery based upon, inter alia, the failure to make a reasonable investigation, even though instructions arguably included the New York Times actual malice rule).

B. Respondeat Superior Liability.

The appellant also contends that the trial court erred in its instruction on respondeat superior liability. While the appellant concedes that it is vicariously liable for the actions of Carto and Tucker, it vigorously argues that it cannot be held accountable for Marchetti’s conduct. In essence, it claims that Marchetti’s state of mind, for the purpose of finding actual malice, may not be imputed to the publisher because Marchetti was an independent contractor.

The district court charged the jury as follows:

When a corporation is involved, of course, it may act only through natural persons as its agents or employees, and in general any agent or employee of a corporation may bind the corporation by his acts and declarations made while acting within the scope of his authority delegated to him by the corporation, or within the scope of his duties as an employee of the corporation.

The court now instructs you that publishers can be held vicariously liable for knowing falsehood offered by freelance writers.,

An act of an employee or agent, to become the act of Liberty Lobby, Inc., must be performed by the agent, while acting within the scope of his employment.

The court charges you as a matter of law, that before any acts of knowledge of Victor Marchetti or James P. Tucker may be imputed to the defendant, Liberty Lobby, Inc., plaintiff, must prove by a preponderance of the evidence that the defendant, Liberty Lobby, Inc., had actual knowledge of its facts and information, or that Marchetti and Tucker were acting in the scope of their employment when they performed the acts or required the information.

Tr. 509-511.

Liberty Lobby made only a general, ambiguous objection to this instruction, stating that “[t]here is no question we would be liable for anything Mr. Tucker might have done. He is sort of lumped in here where it says freelance writer and what-have-you.” Tr. 463. We seriously doubt that this objection constituted a distinct statement of the matter to which the appellant objected and the grounds for its objection, see Fed.R. Civ.P. 51. It does not even raise the question of vicarious liability for Marchetti’s actions. Nevertheless, because a new trial is required, we consider the appellant’s current objection to the jury charge.

In Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974), the Court approved of a jury charge which permitted the imposition of vicarious liability upon a publisher for the knowing falsehoods written by its staff writer. The Court found no fault with the traditional state law doctrine of respondeat superior in that context. Here, it is conceded that Carto and Tuckers actual malice could be imputed to Liberty Lobby. Their roles with the newspaper enabled them to bind the appellant by their actions. To the extent that the vicarious liability instruction respecting Tucker tracks the charge in Cantrell, it is sufficient.

The inclusion of Marchetti in the respon-deat superior instruction was not consistent with the evidence. Under Florida law, a principal is liable for the torts of his agents. Nelson v. Shell Oil Co., 396 So.2d 752 (Fla. App.1981); King v. Young, 107 So.2d 751 (Fla.App.1958). The test for imposing such vicarious liability is whether the agent or employee is subject to the control of his principal or employer. Id. Conversely, it is well established that an employer is not responsible for the torts of an “independent contractor.” The “status of an independent contractor, as distinguished from that of an agent, consists of a contractual relationship by one with another to perform something for him, but the one so engaged is not controlled or subject to the control of the other in the performance of the engagement .... ” King, 107 So.2d at 753.

In his amended complaint, Hunt alleged that “Marchetti is a citizen of the state of Virginia and is an independent contractor and freelance writer.” Consistent with this position, he did not attempt to prove his case on a vicarious liability theory as it pertained to Marchetti. His evidence focused on Carto and Tucker’s actions in an effort to establish their actual malice imputable to the appellant. The record does not support a finding that the appellant controlled Marchetti in any manner. Rather, from our reading of the record, it appears that the parties assumed that Mar-chetti was an independent contractor. Consequently, it was error to include Marchetti in an instruction on vicarious liability.

C. Punitive Damages.

The district court instructed the jury that it could also award punitive damages if it found in favor of Hunt on his libel cause of action. The court went on to explain that such damages would be proper if the jury determined that Liberty Lobby acted with “malice, wilfullness or callous and reckless indifference” to Hunt’s rights. Although the appellant did not object to this jury charge at the trial, it now complains that it was an incorrect statement of Florida law. Alternatively, it argues that punitive damages cannot be constitutionally imposed in public figure libel cases.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court held that a non-public figure could recover compensatory damages for libel without showing New York Times actual malice as long as he proved some degree of fault. However, the Court decided, such a person cannot recover punitive damages without demonstrating actual malice — “the States may not permit recovery of ... punitive damages ... when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at 349, 94 S.Ct. at 3011, 41 L.Ed.2d at 810. After Gertz there was some speculation that punitive damages could not be recovered by public figures because of the Court’s clear aversion to such a penalty in first amendment cases. Nevertheless, as many courts have recognized, Gertz did not go that far. See, e.g., Maheu v. Hughes Tool Co., 569 F.2d 459, 478-80 (9th Cir. 1977); Appleyard v. Transamerican Press, Inc., 539 F.2d 1026, 1029-30 (4th Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977); Carson v. Allied News Co., 529 F.2d 206, 214 (7th Cir.1976); Davis v. Schuchat, 510 F.2d 731, 736-38 (D.C.Cir. 1975). Rather, punitive damages can be recovered consistently with the first amendment by public figures who are able to prove New York Times actual malice. Id. We decline to adopt a contrary view.

The determination that punitive damages are available to a public figure in a constitutional sense does not end our inquiry. The states are free to impose an additional burden upon plaintiffs who seek punitive damages in libel actions. See Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974). Many states do not permit punitive damages unless the plaintiff can show that the defendant entertained “common law” or “express” malice. Common law malice differs substantially from the New York Times definition of actual malice. The former focuses on the defendant’s feelings toward the plaintiff while the latter goes to the defendant’s knowledge of the truth or falsity of a publication about the plaintiff. Cantrell, 419 U.S. at 251-52, 95 S.Ct. at 469-70, 42 L.Ed.2d at 426-27.

Our research confirms that Florida is one of those states that requires a form of common law malice to sustain an award for punitive damages. The Florida courts have concluded that “In order to award punitive damages in a libel action, ill will, hostility or an evil intention to defame and injure, must be present.” Matthews v. Deland State Bank, 334 So.2d 164, 166 (Fla.App. 1976). See also, Brown v. Fawcett Publications, Inc., 196 So.2d 465, 472-73 (Fla.App.), cert. denied, 201 So.2d 557 (Fla.1967). While the Florida law is not without ambiguity, it appears that proof of this type of malice may come from two sources: the publication itself and extrinsic evidence concerning the defendant’s feelings toward the plaintiff. Id. Therefore, a jury instruction on the common law malice necessary to support punitive damages should focus the jury’s attention on the defendant’s feelings of ill will toward the plaintiff, considering “the evidence produced at trial” and the “character of the publication itself.” Matthews, 334 So.2d at 166.

Punitive damages were predicated on the proof that Liberty Lobby acted with “malice, wilfullness or callous and reckless indifference” to the rights of Hunt. Although the instruction of the district court approaches Florida’s common law malice definition, on retrial the jury should be cautioned that a verdict for punitive damages can be returned only if it finds that Liberty Lobby acted with the type of ill will identified in Matthews.

The Affidavits

Finally, Liberty Lobby complains of the admission into evidence of the affidavits of certain CIA officials. The affiant in each document stated that he was the custodian of particular records at the CIA and that, after diligent search of the appropriate files, he was unable to locate any evidence of CIA memoranda indicating that Hunt was in Dallas, Texas, on November 22, 1963 or discussing the need to explain Hunt’s whereabouts on that date. The certificate of the General Counsel of the CIA was attached to each affidavit certifying that each affiant occupied the position stated in his affidavit. These certificates bore the CIA’s official seal.

The affidavits were properly admitted. They fell within an exception to the hearsay rule, see Fed.R.Evid. 803(10) (“absence of public record or entry”), and were self-authenticating, see Fed.R.Evid. 902(2) (“Domestic public documents not under seal”). Moreover, contrary to the appellant’s contention, this evidence was relevant. One element of Hunt’s case required him to prove the falsity of the published statements. Thus, he introduced the affidavits to show that the CIA memorandum referred to in the article did not exist. The argument that the absence of the memorandum at the time of the litigation does not prove its absence in 1978 should have been made to the jury. It is not a reason for exclusion of clearly relevant evidence.

The judgment of the district court is AFFIRMED in part and REVERSED in part and REMANDED for a new trial.

. Hunt’s original complaint named Liberty Lobby and Victor Marchetti as defendants. Mar-chetti, a freelance writer based in Washington, D.C., was the author of the article in controversy. Hunt’s cause of action against Marchetti was dismissed by the district court because of a lack of jurisdiction over him in the Southern District of Florida. Hunt does not appeal that ruling.

. Marchetti’s article also described the CIA’s plan to implicate other individuals in the upcoming hearing before the House Assassinations Committee.

. Even though Liberty Lobby admitted that Hunt was not in Dallas, Hunt presented the deposition testimony of one witness who stated that he saw Hunt in Washington, D.C. on the day of the Kennedy assassination.

. The only statement emanating directly from Marchetti was his affidavit which Liberty Lobby attached to its motion for summary judgment. The affidavit did not, however, become a part of the trial record.

. The district court overruled an effort to enter the findings of the Committee into evidence. However, the findings were disclosed to the jury during the reading of Carto’s deposition testimony in which he quoted from the report. According to this testimony, the Committee stated that “During the course of the Committee’s investigation, a rumor was circulating that the Committee had uncovered a memorandum in CIA files indicating Hunt was in Dallas on November 22, 1963. The rumor was not founded on fact. In addition, Hunt gave the Committee a sworn deposition in which he denied the allegation and the Committee found no evidence that contradicted Hunt’s deposition.” Tr. 295-96.

. One such clipping, a February 6, 1975 Associated Press excerpt from the Miami News entitled “Hunt denies part in plot to kill JFK,” included Hunt’s “bitter criticism” of a photograph purportedly depicting him near the scene of the assassination and his unequivocal assertion that he was not in Dallas on November 22, 1963. Also admitted was a June 23, 1975 Time Magazine article which reported the findings of the Rockefeller Commission concerning the CIA’s participation in the Kennedy murder. This article stated that the commission had “dismantled” the theory that Hunt was involved in the assassination, that an FBI pho-toanalyst had determined that Hunt was not pictured in the photograph of three men taken near the crime scene and that the commission found no evidence that Hunt was in Dallas on that day. These press clippings were admitted over Liberty Lobby’s hearsay and relevancy objections “to show prior knowledge of these defendants of similar circumstances where Mr. Hunt is accused of what he is accused of in this article and that they should have been advised or on notice.” Tr. 77.

. Carto recollected that Marchetti told him pri- or to publication that his sources were “private, confidential sources in the CIA” and that after publication Marchetti told him the names of some of the sources. Carto refused to provide the names, claiming a “journalistic privilege” and stating that he could not remember the names.

. Carto testified: “we were relying completely on the expertise and knowledge and reputation, the background, the association, the contacts, the integrity of Mr. Marchetti.” Tr. 329.

. The word “tramps” was substituted for “bums” by Carto.

. The phrase “that this was not true” was substituted for Marchetti’s original phrase, “that he was not.”

. This passage was originally written as one paragraph by Marchetti. When it was published, it was broken down into two paragraphs, the second paragraph beginning with the third sentence. Neither Carto nor Tucker could remember which one edited the article first or precisely who inserted which changes. Therefore, it is uncertain whether “Confirm this!” was intended to cover the entire original paragraph or only one of the two resulting paragraphs.

. Carto testified:

Q. Why did you wrote [sic] that?

A. That was because of the wording in the story, ‘Hunt immediately sued for millions of dollars in dam