Richard Lloyd Carr v.  Forbes, Incorporated; Matthew Schifrin; John Does

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 RICHARD LLOYD CARR,
Plaintiff-Appellant,
v. No. 00-2555 
FORBES, INCORPORATED; MATTHEW
SCHIFRIN; JOHN DOES,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-99-1967-6-13)
Argued: June 7, 2001
Decided: August 1, 2001
Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Luttig and Judge Gregory joined.
COUNSEL
ARGUED: William Marvin Grant, Jr., GRANT & LEATHER-
WOOD, P.A., Greenville, South Carolina, for Appellant. Wallace K.
Lightsey, WYCHE, BURGESS, FREEMAN & PARHAM, P.A.,
Greenville, South Carolina, for Appellees. ON BRIEF: Langdon
Cheves, III, GRANT & LEATHERWOOD, P.A., Greenville, South
Carolina, for Appellant. Carl F. Muller, WYCHE, BURGESS, FREE-

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MAN & PARHAM, P.A., Greenville, South Carolina; Tennyson
Schad, NORWICK & SCHAD, New York, New York, for Appellees.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Richard Lloyd Carr, an engineer who develops privately financed
public infrastructure projects, brought this action asserting that
Forbes, Incorporated defamed him by publishing an article casting
doubt on the integrity of his conduct and his representations concern-
ing those projects. Because Carr is a limited-purpose public figure
who has forecast no evidence that Forbes acted with actual malice in
publishing the article, we affirm the district court’s grant of summary
judgment to Forbes.
I.
Carr has spent his career managing the development of public
infrastructure projects; he assembles construction proposals, finds
teams of engineers to build such projects, and identifies sources of
funding for them. In 1992, an engineering company that Carr owned
ran into financial trouble leading to its demise and Carr’s personal
bankruptcy. Carr then contacted a former employer, the Dana Larson
Roubal Group (DLR), a large national engineering and architectural
firm, and convinced DLR to provide seed money to form a new com-
pany, Interwest Management, Inc., through which Carr, as President
and CEO, could continue managing the development of public infra-
structure projects with public-private financing methods.
In the early 1990s, Carr contracted to develop a sewer for the town
of Quartzsite, Arizona. Carr served as his firm’s public representative
for the project and maintained a prominent profile in the project’s
development. The sewer project tapped into local political passions
and, in 1993 when the town elected a new mayor who had cam-
paigned against the sewer system, the town canceled construction of
the sewer and refused to pay Interwest for the work that the firm had
completed. Interwest and the town proceeded to arbitration, resulting
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in an award in Interwest’s favor. After the town refused to honor the
award, Interwest sued to recover its fees.
As Interwest was developing the Quartzsite project, officials in
Apache Junction, Arizona, who were familiar with Carr’s work in
Quartzsite, contacted Carr seeking to develop a sewer system for their
town. In August of 1991, these officials and Carr’s firm signed a con-
tract to build a similar sewer in Apache Junction. Regulators had
imposed a building moratorium on Apache Junction, the largest town
in the United States without a sewer, because of its inadequate sewage
disposal system; yet, local voters had twice voted against the tax
increases necessary to finance such a system. Carr proposed that the
town form a private sewer district that could operate the sewer by col-
lecting fees and thereby avoid new taxes. After Carr arranged to
create a sewer district, that district hired Interwest to build and man-
age the project and financed it through the issuance of bonds, all of
which the Allstate Insurance Company, Inc. purchased. However,
Interwest had apparently relied on unreasonably optimistic projec-
tions and an erroneous database of potential customers. Due to a lack
of customers, the sewer district was unable to pay off its bonds and
ultimately filed for bankruptcy. Allstate then sued all members of the
Interwest team for fraud.
In July 1995, as the Apache Junction sewer project neared comple-
tion, South Carolina officials solicited bids to build the Southern Con-
nector, a highway intended to connect I-85 with I-385 in Greenville
County, South Carolina. Carr and Interwest arranged that a new cor-
poration, Interwest Carolina, LLP, be formed to bid for the contract
to build this highway. Carr had no ownership stake in Interwest Caro-
lina, which, like Interwest, was controlled by DLR. The record does
not reveal whether Carr was an officer in Interwest Carolina, but
indisputably he continued to serve as President and CEO of Interwest
itself. Bob Farris, a former Federal Highway Administration Commis-
sioner, was the "public face" of Interwest Carolina. Carr served as the
project’s manager and behind-the-scenes facilitator and shared with
Farris joint authority for the project.
After a competitive bidding process in March of 1996, South Caro-
lina selected Interwest Carolina to complete the Southern Connector
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project. Among the many firms Carr drew together to form the Inter-
west Carolina team was Wilbur Smith Associates.
Controversy immediately ensued over the highway project. Indeed,
its opponents brought suit, contending that the project required a local
referendum, a position the South Carolina Supreme Court ultimately
rejected. When word of the Allstate lawsuit against Interwest reached
South Carolina, state officials developed concerns as to the compe-
tency and honesty of Interwest Carolina. The Allstate suit became the
topic of local news coverage and local officials investigated the alle-
gations in that suit to determine whether Interwest Carolina should
continue on the project. South Carolina officials decided to take no
action and Interwest Carolina continued its work on the Southern
Connector.
In its July 7, 1997 edition, Forbes magazine printed an article enti-
tled "Moonshine Bonds" that was centered on Carr. The article sug-
gested that Carr was a shady businessman with a troubled history. The
article criticized Carr throughout. For example, it alleged that Carr
"smelled money" in public-private financing, that he "exploited" the
tax law, and that he sought to target a larger federal funding program
as "bigger game" which was "right on [his] turf." In the table of con-
tents, the magazine referred to Carr as the "Moonshine Man." Forbes
noted Carr’s personal bankruptcy, the failure of his prior business,
and that he had once hired a convicted felon who had served time in
connection with an insurance fraud scheme. The article alluded to the
Quartzsite project — stating that it "ended in a legal mess" — and
focused on Carr’s involvement with the Apache Junction and South-
ern Connector projects.
Based on the allegations in the Allstate suit, "Moonshine Bonds"
charged Carr with personally defrauding Allstate and the town of
Apache Junction.1 The article explained that the Apache Junction
sewer district had "busted" because "the feasibility study done by
Carr’s company had grossly overstated the number of residents who
would sign up for sewage connections." Although the magazine noted
that "Carr has an explanation for all his failures," specifically the
1The Allstate suit settled after publication of the Forbes article for over
nine million dollars, of which Interwest paid Allstate $1.25 million.
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"failure" of Apache Junction, it suggested that any explanation was
false by highlighting the fact that Carr’s "company drew $1.5 million
in project management fees" from the project.
"Moonshine Bonds" further stated that, while Apache Junction resi-
dents were "nursing their wounds," Carr had "moved on" and was
now "pushing yet another" project, the Southern Connector. The arti-
cle claimed that Carr’s firm was awarded the Southern Connector
contract because it had secured a study by Wilbur Smith Associates,
which "project[ed] traffic and toll revenues 50% higher" than a previ-
ous study conducted by that same firm. Forbes implied that, like the
Arizona project, the South Carolina project would fail because it was
based on a fraudulent feasibility study. The article noted that Carr had
now "set his sights on even bigger game" because he intended to par-
ticipate in a new federal financing program. It concluded with the
statement: "Count on one thing: Those bond sellers [for the Southern
Connector] won’t be calling on Allstate to unload the Carolina bonds"
and recommended that readers "take a pass" on the Southern Connec-
tor bonds.
The author of "Moonshine Bonds," Matthew Schifrin, began work
on the article after a bond "watchdog," Richard Lehman, alerted him
to the potential story. Lehman put Schifrin in touch with George
Price, a South Carolina activist working to defeat the Southern Con-
nector. Price provided Schifrin with a notebook of material that he
had collected about the project. Schifrin subsequently conducted inde-
pendent research. In addition to speaking with Price and Lehman, he
talked with several other sources, including an Allstate attorney
involved in the lawsuit, a financier, a local Arizona town official, and
Carr, himself. Schifrin also examined relevant documents including
the complaint in the Allstate action and project proposals relevant to
the Southern Connector. A Forbes employee fact-checked Schifrin’s
article and verified all of its material facts.
Soon after the Forbes company published "Moonshine Bonds,"
DLR, believing Carr to be a public relations problem and no longer
"marketable," terminated his employment with Interwest. Carr subse-
quently brought this defamation suit in June 1999 against Forbes,
Schifrin, and several John Does (hereafter, collectively "Forbes"). The
district court granted Forbes summary judgment, reasoning that Carr
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was a limited-purpose public figure who could not prove by clear and
convincing evidence that Forbes had acted with actual malice. Carr
now appeals.
II.
We first consider whether Carr is a public figure. If so, the First
Amendment, as authoritatively interpreted by the Supreme Court,
requires that he bear a substantial burden of proof in this defamation
action.
The Court has long recognized that defamation claims potentially
chill the free speech rights jealously protected by the First Amend-
ment. Were speakers threatened with potential liability every time
they wished to criticize, they would hesitate to provide the public with
many important facts and ideas. A free self-governing people must
have access to all relevant information — both the laudatory and the
critical — when choosing a course of public policy. For this reason,
the Court has held that a public figure — a person essentially part of
the public debate — may only recover damages "for a defamatory
falsehood relating to his official conduct [if] he proves that the state-
ment was made with ‘actual malice’ — that is, with knowledge that
it was false or with reckless disregard of whether it was false or not."
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
Moreover, a person need not be a public figure in all respects to
trigger the actual malice standard. The Supreme Court has also held
that, in certain circumstances, the Constitution treats private citizens
who are not otherwise public figures as public figures for the purpose
of comment upon certain issues. See Hutchinson v. Proxmire, 443
U.S. 111, 134 (1979); Wolston v. Reader’s Digest Assoc., 443 U.S.
157, 164-68 (1979); Time, Inc. v. Firestone, 424 U.S. 448, 454-55
(1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). When
a person thrusts himself into the forefront of public debate, he is
treated as a "limited-purpose public figure" for purposes of comment
on issues arising from that debate. Such "limited-purpose public fig-
ures," like other public figures, may only recover for defamatory
statements made with actual malice. Forbes contends, and the district
court held, that Carr is such a limited-purpose public figure with
respect to the issues discussed in "Moonshine Bonds."
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Whether a person has achieved the status of a limited-purpose pub-
lic figure is a question of law, which we consider de novo. Foretich
v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1551 (4th Cir. 1994). In
answering that question, we conduct a two-part inquiry. First, we
ascertain whether a public controversy gave rise to the defamatory
statement. Second, we determine whether the plaintiff’s participation
in that controversy sufficed to establish him as a public figure within
the context of that public controversy. Id. at 1553. The defendant
bears the burden of proving the plaintiff’s public figure status.
A.
Determining whether a public controversy gave rise to the article
at issue in this case requires review of the scope of the alleged defam-
atory statements and the facts surrounding them. A "public contro-
versy" does not encompass every conceivable issue of interest to the
public. Time, 424 U.S. at 454. Rather, "public controversy" is a legal
term of art; the term only encompasses a dispute "that in fact has
received public attention because its ramifications will be felt by per-
sons who are not direct participants." Foretich, 37 F.3d at 1554.
The Forbes article primarily addresses the financing and construc-
tion of the Apache Junction sewer and the Southern Connector high-
way. On one hand, Carr argues that neither of these subjects gave rise
to a public controversy; he maintains that the article comments only
upon isolated "local issues" that had no "ramifications for nonpartici-
pants." On the other hand, Forbes contends that the article describes
a broad ranging, important public controversy over public-private
financing deals with "nationwide implications."
Neither formulation is wholly accurate. The record clearly demon-
strates that the Arizona and South Carolina projects engendered local
controversies, but that these controversies do constitute parts of a
greater, more general public controversy. One need not, however,
inflate this public controversy, as Forbes would, into its most general
and amorphous form — public-private financing as a general matter
— to capture its significance. Rather, most accurately, the facts before
us demonstrate a public controversy over the soundness of privately
financed public projects of Carr’s Interwest companies, as exempli-
fied by the Apache Junction sewer and Southern Connector highway.
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Unquestionably, public attention focused on the legitimacy of the
projects described in "Moonshine Bonds." The Apache Junction proj-
ect received significant publicity in the Arizona community and
media both at the time that Interwest developed the project and after
its completion. The press also published articles concerning the litiga-
tion arising out of the Apache Junction project. Similarly, the local
community in South Carolina discussed and debated the Southern
Connector. Furthermore, after word of the Apache Junction lawsuit
against Interwest reached South Carolina, a public debate ensued over
whether the facts alleged in the suit indicated that Interwest Caroli-
na’s participation in the Southern Connector would result in similar
problems. Indeed, the suit led South Carolina authorities to investi-
gate Interwest Carolina to determine whether its contract to build the
Southern Connector should be canceled.
The fact that the controversy addressed by Forbes stirred public
debate may be enough to satisfy the requirement that a true public
controversy gave rise to the publication. See Foretich, 37 F.3d at 1555
(that child custody dispute stirred "public discussion" of child-abuse
and civil contempt was enough to create public controversy affecting
the public). In addition, however, Carr’s conduct in developing public
works projects had a concrete impact on the lives of people outside
the controversy. Public projects, by definition, exist for the public at
large. When public projects are mismanaged and bonds issued to
finance those projects fail, those projects may in turn fail, thereby
harming the public. The citizens of Apache Junction, Arizona now
live in a town with a mismanaged, over-built sewage system that was
forced to the brink of bankruptcy. The citizens of South Carolina —
and indeed all travelers who might use the Southern Connector —
would likewise suffer were the bonds financing that project to fail.
In sum, "Moonshine Bonds" addressed a public controversy.
B.
We next ask whether Carr’s participation in this controversy is suf-
ficient to justify treating him as a limited-purpose public figure for
purpose of comment upon it. To "become[ ] a public figure for a lim-
ited range of issues," one must "voluntarily inject[ ] himself or [be]
drawn into a particular public controversy." Gertz, 418 U.S. at 351.
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Therefore, a limited-purpose public figure is essentially one who has
assumed a "role of public prominence in the broad question of con-
cern." Hutchinson, 443 U.S. at 135.
We have devised a five-factor test to determine whether the plain-
tiff has thrust himself into a controversy to the extent necessary to
trigger limited-purpose public figure status. We consider whether (1)
the plaintiff has access to channels of effective communication, (2)
the plaintiff voluntarily assumed a role of special prominence in the
controversy, (3) the plaintiff sought to influence the resolution of the
controversy, (4) the controversy existed prior to the publication of the
defamatory statements, and (5) the plaintiff retained public figure sta-
tus at the time of the alleged defamation. See Fitzgerald v. Penthouse
Int’l, Ltd., 691 F.2d 666, 668 (4th Cir. 1982). In this case, review of
these five factors requires the conclusion that Carr has taken the affir-
mative steps necessary to inject himself into the controversy sur-
rounding the soundness of his bond-financed public projects and
therefore to become a limited-purpose public figure.
The heart of our five-factor test is the second and third factors,
which we have sometimes combined into the question of "whether the
plaintiff has voluntarily assumed a role of special prominence in a
public controversy by attempting to influence the outcome of the con-
troversy." Reuber v. Food Chem. News, Inc., 925 F.2d 703, 709 (4th
Cir. 1991) (en banc). One does not become a limited-purpose public
figure merely by contracting with the government or accepting public
money, see Hutchinson, 443 U.S. at 135, but one who contracts with
the government can become such a public figure because of the way
in which he conducts himself in connection with those public con-
tracts. See, e.g., McDowell v. Paiewonsky, 769 F.2d 942, 949 (3d Cir.
1985) (architect who built public works became limited-purpose pub-
lic figure through his acts in conjunction with those projects). In this
case, Carr did not merely contract with the government; he personally
and affirmatively took actions that invited public attention in connec-
tion with public contracts.
Although Carr did not own Interwest, the company was his brain-
child and he served as the company’s President and chief executive.
In this position, he was, for all intents and purposes, solely in charge
of the company’s activities. He hired almost all of its employees,
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selected its projects, planned its operations, and put together its deals.
Carr decided if and how Interwest would develop the Quartzsite and
Apache Junction projects and played a critical role in forming Inter-
west Carolina and supervising its development of the Southern Con-
nector project.
Of course, "activity likely to engender publicity, even criminal
activity, does not equate to taking on a role of special prominence in
a public controversy." Wells v. Liddy, 186 F.3d 505, 536 (4th Cir.
1999). Carr, however, did far more than the plaintiffs in Wolston, 443
U.S. at 167 (suspected spy not a public figure when he "never dis-
cussed this matter with the press and limited his involvement to that
necessary to defend himself against the contempt charge"), or Gertz,
418 U.S. at 352 (defense counsel in civil case not a public figure in
controversy arising from related criminal case when he "took no part
in the criminal prosecution" and "never discussed either the criminal
or civil litigation with the press and was never quoted as having done
so"). Carr, unlike Wolston and Gertz, voluntarily injected himself into
the public debate by "attempt[ing] to influence the merits of [the] con-
troversy." Wells, 186 F.3d at 537.
For example, in Apache Junction, Carr selected the team that
would build the sewer project. He also chose the project’s financiers,
and therefore played a role in the sale of the bonds financing the proj-
ect. Rather than being "dragged unwillingly into the controversy,"
Wolston, 433 U.S. at 166, Carr voluntarily assumed a prominent pub-
lic presence: he attended public meetings, spoke out in favor of the
sewer project, wrote editorials for the local press, and was quoted in
the local media, all in an effort "to engender public support" for the
project. See Fitzgerald, 691 F.2d at 668 (promotional efforts for pub-
lic venture through which plaintiff seeks pecuniary gain can be
attempt to influence controversy).
Although the parties dispute the character of Carr’s activity in
South Carolina, it is uncontroverted that, at least behind the scenes,
he managed the Southern Connector project in much the same way as
he had managed the Apache Junction project. As the Senior Program
Manager of Interwest Carolina, Carr was, according to the company’s
project proposal, a "key principal." Carr played a dominant role in
building the Interwest Carolina team and creating the bid for the proj-
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ect. In so acting, Carr negotiated with South Carolina public officials.
He also was instrumental in hiring Wilbur Smith to conduct the
studies upon which Interwest Carolina’s bid was based. If not the only
force behind the project in South Carolina, Carr was clearly a strong
and influential one.
In sum, instead of "play[ing] only a minor role" in the public con-
troversy that gave rise to the assertedly defamatory statements, Wols-
ton, 443 U.S. at 167, Carr directed Interwest and managed all of the
projects discussed in "Moonshine Bonds." See Reuber, 925 F.2d at
709 (prominence in a professional field may be sufficient to satisfy
factors two and three). If those projects were based upon fraudulent
estimates and studies (and we express no view on this), some of the
responsibility rests with Carr. His acts created much of the contro-
versy discussed in the article, and he voluntarily injected himself into
much of the public imbroglio surrounding these projects.
Carr also satisfies the other three prongs of our five-factor test. The
record before us demonstrates that Carr had access to channels of
effective communication to rebut the allegations in the Forbes article.
Indisputably, Carr’s Interwest projects received substantial attention
in the press. See Reuber, 925 F.3d at 708 (past publications concern-
ing professional work of plaintiff is evidence of access to channels of
effective communication). Moreover, Carr has often been quoted in
media reports involving his Arizona projects, demonstrating his abil-
ity to obtain press coverage as to his views of the projects. Similarly,
the South Carolina press quoted Interwest Carolina officials on the
Southern Connector project and Interwest’s connection to the Arizona
projects. Although Carr himself was never quoted with respect to the
South Carolina projects, he was a leader of the entity from which the
media solicited quotes. Undoubtedly, the press would have reported
Carr’s views, over those of lesser officials, if he had made himself avail-
able.2
2Of course, the Arizona and South Carolina media do not have the
international readership of Forbes magazine. However, a court does not
ask whether a defamation plaintiff has ever had access to a media outlet
with the same size readership of the allegedly defamatory publication;
such an inquiry would effectively prohibit widely read publications from
ever commenting on local controversies. Our inquiry is rather whether
the evidence demonstrates that the defamation plaintiff had access to
channels of effective communication to respond to the allegedly defama-
tory statements. Carr clearly had such access.
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The remaining two prongs of our test are also easily satisfied. The
controversy over Carr’s projects clearly existed before the report in
"Moonshine Bonds." Indeed, well before dissemination of that article,
Allstate had sued Interwest for fraud, and that suit had received the
attention of the press. Similarly, prior to the airing of "Moonshine
Bonds," the advisability of the Southern Connector was publicly
debated. Before the article was published, Allstate’s suit against Inter-
west spurred South Carolina authorities to investigate Interwest,
which in turn prompted media reports on that investigation. Finally,
Carr also certainly maintained his public figure status at the time of
the alleged defamation. When Forbes published "Moonshine Bonds"
in July 1997, the Allstate suit was still pending and the Southern Con-
nector project was ongoing. Therefore, we conclude that all five fac-
tors have been met, and that Carr’s participation in the controversy
surrounding the financial soundness of the Interwest companies’ pub-
lic projects sufficed to justify treating Carr as a limited-purpose public
figure for purpose of comments arising out of that controversy.
III.
Because Carr is a limited-purpose public figure, he can only
recover in defamation if Forbes acted with actual malice in publishing
"Moonshine Bonds." Proof of falsity is not enough; Carr must also
demonstrate that Forbes "made the [false] statement with knowledge
that it was false or with reckless disregard of whether it was false or
not." Reuber, 925 F.3d at 714 (quoting New York Times, 376 U.S. at
280). Reckless disregard means "publishing with a high degree of
awareness of . . . probable falsity." Id. (quoting Garrison v. Louisi-
ana, 379 U.S. 64, 74 (1964)). Establishing actual malice is no easy
task, because the defamation plaintiff bears the burden of proof by
clear and convincing evidence.3 As an appellate court reviewing an
3Although acknowledging that the Supreme Court has denied state-
ments of "opinion" blanket constitutional protection, see Milkovich v.
Lorain Journal Co., 497 U.S. 1, 21 (1990), Forbes also claims that Carr
has failed to show actual malice because any potentially defamatory
statements in the article are not actionable. Forbes argues that, as mere
rhetorical hyperbole and opinion, these statements cannot objectively "be
proved false." We need not address this contention because Carr has oth-
erwise failed to demonstrate actual malice by clear and convincing evi-
dence.
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order granting summary judgement, we must independently review
the record to determine whether Carr has forecast evidence sufficient
to prove actual malice by clear and convincing evidence. See Bose
Corp. v. Consumer’s Union, Inc., 466 U.S. 485, 514 (1984).
Even assuming that at least some of the information in "Moonshine
Bonds" is false, Carr cannot prevail because he has not forecast clear
and convincing evidence that Forbes actually knew, or had a high
degree of awareness of, the probable falsity of anything in the article.
Indeed, the record contains uncontroverted evidence that the Forbes
reporter, Matthew Schifrin, conducted extensive research before he
wrote the Forbes article. None of the material Schifrin collected put
him on notice that any of the information in the article was false.
Among other sources, Schifrin spoke with an Allstate attorney
involved in the suit against Interwest, a public bond expert with a
good reputation, a local activist opposed to the Southern Connector,
and Carr himself. Schifrin also personally reviewed documents
involved in the Southern Connector project, including Interwest Caro-
lina’s proposal.
Moreover, a Forbes employee meticulously fact-checked Schifrin’s
article. The fact checker’s notes reveal that at least one source verified
every statement in the article. In the face of this careful research, Carr
does not point us to anything that should have put Forbes on notice
as to the falsity of any statement in "Moonshine Bonds."
Carr essentially complains that Forbes should have investigated
further before it published "Moonshine Bonds." According to Carr,
"accepted standards of journalism" require this. Carr contends that, if
these standards had been followed, Forbes would have learned that
the article was altogether false. This may be true. However, "reckless
conduct is not measured by whether a reasonably prudent man would
have published, or would have investigated before publishing." St.
Amant v. Thompson, 390 U.S. 727, 731 (1968). "There must be suffi-
cient evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication." Id.
(emphasis added).
Carr also contends that an anonymous editor added the article’s
most inflammatory statements without any knowledge of the facts. A
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review of the article from Schifrin’s first draft, through the editing
process, to the final draft, reveals that the language of the article did
become more spirited and critical of Carr as editing progressed. How-
ever, Carr certainly has not pointed to any evidence that would prove
clearly and convincingly that an editor made these changes out of
whole cloth without consulting Schifrin’s research. Indeed, it is undis-
puted that the fact-checker independently verified every fact in the
final published version.
The Forbes article may contain false or misleading statements
about Carr. The record before us certainly does not prove that Carr
is a con-man or a criminal who enriched himself by defrauding bond-
holders in public-private partnership deals. He well may be an honest
businessman who made some mistakes that those seeking to destroy
his projects exploited. However, the First Amendment does not
require perfection from the news media. Were the press subject to suit
every time it erred, it would decline to speak out without resorting to
the sort of cumbersome due diligence common in security offerings.
For this reason, the Constitution provides the press with a shield
whereby it may be wrong when commenting on acts of a public fig-
ure, as long as it is not intentionally or recklessly so.
IV.
For all of these reasons, the judgment of the district court is
AFFIRMED.
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