BROWN & WILLIAMSON TOBACCO CORPORATION, Plaintiff-Appellee—Cross-Appellant, v. Walter JACOBSON and CBS, Inc., Defendants-Appellants—Cross-Appellees

This case is the sequel to Brown & Williamson v. Jacobson, 713 F.2d 262 (7th Cir.1983), in which we reinstated a libel suit that had been brought by Brown & Williamson Tobacco Corporation, which produces and markets Viceroy cigarettes, against CBS, Inc. Following our remand, the district court held a jury trial that resulted in a verdict against CBS and an award of $3,000,000 in compensatory damages and an award of $2,050,000 in punitive damages. Following post-trial motions, the district court reduced the compensatory *1122 damage award to $1.00 but upheld the punitive damage award. See Brown & Williamson v. Jacobson, 644 F.Supp. 1240 (N.D.Ill.1986). We affirm the district court's decision on liability and punitive damages but reverse its compensatory damage ruling and reinstate $1,000,000 of the $3,000,000 originally awarded by the jury.

I.

The attitude of most knowledgeable and disinterested persons toward the tobacco industry is certainly negative; at least it has been negative for the past decade. In such an atmosphere, it becomes difficult to imagine how the tobacco people can be libeled. The bashing of the industry by government and private groups has become a virtual cottage industry. This case, however, demonstrates that general bum raps against the whole tobacco industry are different from specific accusations of skulduggery by a specific company or person. And this case involves some very specific statements against a very specific company in the tobacco industry. The facts are as follows: Walter Jacobson, an employee of the CBS-owned Chicago television station WBBM-TV, has served for a number of years as the co-anchor for the 10 p.m. weekday newscasts. 1 In addition to fulfilling his duties as an anchorman, Jacobson also delivers a nightly feature known as “Walter Jacobson’s Perspective.” When Jacobson delivers his Perspectives, he moves from his normal location at the anchor desk, which is located in the station’s newsroom rather than in a separate studio, to a special “Perspective” section of the newsroom. During the feature, the word Perspective appears on the screen with Mr. Jacobson’s signature below it. The Perspective segments are rebroadcast the following day during WBBM’s early evening news broadcasts.

As part of its activities promoting the quality of its news personalities, CBS ran ads which stated that “[w]ith ten years of experience on our anchor desk, [Walter Jacobson] has established himself as the city’s most savvy political reporter ... with contacts as solid as his credentials.” Jacobson was touted by CBS as someone who “pulls no punches” and “lays it on the line.” According to the ads, he is a journalist who will “make you angry. Or make you cheer. Walter Jacobson is liable to evoke all kinds of reactions ... and he’ll always leave you informed.” When he delivered his Pérspective on November 11, 1981, he made the Brown & Williamson Tobacco Corporation very angry.

Jacobson’s November 11 Perspective was the third in a series on the cigarette industry. The first in the series dealt with the political influence of tobacco manufacturers while the second in the series discussed the failure of cigarette manufacturers to incorporate fire prevention features into their products. The final segment in the series, which was promoted on the day of the broadcast as “[t]obacco industry hooks children ... Tonight at 10:00,” dealt with the marketing practices of the cigarette industry. After Jacobson had moved to the Perspective section of the newsroom, his co-anchor, Harry Porterfield, introduced Jacobson’s Perspective by stating:

For the past two nights in Perspective, Walter has been reporting on the companies that make cigarettes and the clout they carry in Washington.

Tonight he has the last in his series of special reports, a look at how the cigarette business gets its customers.

Jacobson then delivered his Perspective:

Ask the cigarette business how it gets its customers and you will be told over and over again, that it’s hard these days to get customers; that the good old days are gone forever. The good old ads for cigarettes cannot be used anymore. Old St. Nick, for example, pushing Lucky Strikes because ... “Luckies are easy on my throat.” The cigarette business can’t count on that kind of an ad anymore. Or the doctors pushing Camels; more doctors smoke Camels than any other cigarette. The business can’t count on an ad like that anymore, either.

Nor can it count anymore on television. Pushing cigarettes on television is prohibited. Television is off limits to ciga *1123 rettes. And so the business (the killer business) has gone to the ad business in New York for help; to the slicksters on Madison Avenue, with a billion dollars a year for bigger and better ways to sell cigarettes.

Go for the youth of America. Go get ’em, guys. Get some young women, give them some samples. Pass them out on the streets, for free, to the teenagers of America. Hook ’em while they’re young. Make ’em start now. Just think how many cigarettes they’ll be smoking when they grow up.

Or, here’s another cigarette-slickster idea. The Merit report wants your opinion; a survey, they say, on current events. A $270,000 Merit wagon. Walk in, children, and let us know what you think about President Reagan. Get involved, children. Thank you, on behalf of Merit cigarettes. Or another cigarette-slickster idea. Go for the children through sports. You’ll never guess who’s likely to be a winner at the Winter Olympics. How about Rudd Pyles, from Colorado? But better than that, how about Benson & Hedges? At-a-way. The best possible way to addict the children to poison. There are more subtle ways, as well. A scene, for example, in Superman II. A bus crashing into a truck. Could be any truck, couldn’t it? But, in a movie that’s being seen by millions of children who love Superman, the bus crashes into a Marlboro truck.

Jacobson then reached the portion of his Perspective that the jury and the district court found libeled Brown & Williamson:

The cigarette business insists, in fact, it will swear up and down in public, it is not selling cigarettes to children; that if children are smoking (which they are, more than ever before), it’s not the fault of the cigarette business. Who knows whose fault it is, says the cigarette business.

That’s what Viceroy is saying. Who knows whose fault it is that children are smoking? It’s not ours. Well, there is a confidential report on cigarette advertising in the files of the federal government right now, a Viceroy advertising [sic]. The Viceroy strategy for attracting young people (starters, they are called) to smoking.

“For the young smoker a cigarette falls into the same category with wine, beer, shaving, or wearing a bra,” says the Viceroy strategy. “A declaration of independence and striving for self-identity. Therefore, an attempt should be made,” says Viceroy, “to present the cigarette as an initiation into the adult world, to present the cigarette as an illicit pleasure, a basic symbol of the growing-up maturity process. An attempt should be made,” says the Viceroy slicksters, “to relate the cigarette to pot, wine, beer, and sex. Do not communicate health or health-related points.”

That’s the strategy of the cigarette-slicksters, the cigarette business which is insisting in public ... we are not selling cigarettes to children.

They’re not slicksters. They’re liars. While Jacobson was making his statements about Viceroy, superimposed on the screen was a current Viceroy ad featuring two packs of Viceroy Rich Lights, a golf ball, and a part of a golf club. The relation of that particular ad to “pot, wine, beer, and sex” advertisements is not clear. Jacobson testified that the golf club ad was used only as a means of identifying the brand name for the viewer.

The “confidential report in the files of the federal government” referred to by Jacobson was a report by members of the staff of the Federal Trade Commission (FTC). The report first came to the attention of Jacobson’s researcher, Michael Radutzky, in the summer of 1981 when Radutzky saw an article in a Kentucky newspaper that referred to the FTC report. Radutzky, who went on to become the producer of the 5:00 p.m. and then the 10:00 p.m. news at WBBM-TV, received copies of the pertinent pages of the FTC report from the author of the newspaper article.

The FTC report stated that documents obtained from Brown & Williamson and one of its advertising agencies, Ted Bates & Company, “set forth the development of an advertising strategy for Viceroy cigarettes designed to suppress or minimize public concern about the health effects of smoking.” The report stated that the doc *1124 uments showed that Bates, which had the Viceroy account in 1975, requested a marketing and research firm, Marketing and Research Counselors, Inc., (MARC) to assist Bates in developing a marketable image for Viceroy cigarettes. After conducting a number of focus group interviews on the subject of smoking, MARC delivered a report, which was authored by N. Kennan, to Bates. The MARC report made recommendations on what its author thought were the important elements of a successful cigarette advertising campaign. As summarized by the FTC report, “the basic premise of the [MARC] report’s recommendations is that since there ‘are not any real, absolute, positive qualities and attributes in a cigarette,’ the most effective advertising is designed to ‘reduce objections’ to the product by presenting a picture or situation ambiguous enough to provide smokers with a rationale for their behavior and a means of repressing their health concerns about smoking.”

The MARC report discussed in a later chapter how “starters” could be introduced to the Viceroy brand. The FTC report quoted the MARC report’s discussion of how the young smoker related to cigarettes. “For them,” the MARC report opined, “a cigarette, and the whole smoking process, is part of the illicit pleasure category____ In the young smoker’s mind a cigarette falls into the same category with wine, beer, shaving, wearing a bra (or purposely not wearing one), declaration of independence and striving for self-identity. For the young starter, a cigarette is associated with introduction to sex life, with courtship, with smoking ‘pot’ and keeping late studying hours.” FTC report at 17 (quoting MARC report) (emphasis in MARC report). The MARC report went on to suggest a strategy for attracting “starters” to the Viceroy brand based “on the following major parameters”:

Present the cigarette as one of a few initiations into the adult world. Present the cigarette as part of the illicit pleasure category of products and activities.

In your ads create a situation taken from the day-to-day life of the young smoker but in an elegant manner have this situation touch on the basic symbols of the growing-up, maturity process.

To the best of your ability, (considering some legal constraints), relate the cigarette to “pot,” wine, beer, sex etc. Don’t communicate health or health-related points.

FTC report at 18 (quoting MARC report). The FTC report then stated that Brown & Williamson had adopted many of the ideas contained in the MARC report in the development of an advertising campaign for Viceroy. Specifically, the report noted that in a document it had received directly from Brown & Williamson, rather than from an advertising agency or a firm hired by the advertising agency, Brown & Williamson had indicated that it must provide consumers with a rationalization for smoking and a “means of repressing their health concerns about smoking a full flavor Viceroy.” FTC report at 18 (quoting Viceroy strategy paper dated March 3, 1976). The Viceroy strategy paper also indicated that other major full flavor brands had either consciously or unconsciously “coped” with the smoking and health issues in advertising by appealing to repression. The strategy paper suggested that Viceroy’s advertising objective should be to “communicate effectively that Viceroy is a satisfying flavorful cigarette which young adult smokers enjoy, by providing them a rationalization for smoking, or, a repression of the health concern they appear to need.” FTC report at 19 (citing Viceroy strategy paper).

The FTC report then cited three Viceroy advertising strategies that were used in a six-month media campaign conducted in three test cities in 1976. The first campaign was the “satisfaction” campaign which was intended to provide a “rationalization.” Specifically, the intention was to convey the message that “Viceroy is so satisfying that smokers can smoke fewer cigarettes and still receive the satisfaction they want.” The second campaign, the “tension release” campaign, was intended to convince the smoker that Viceroy’s satisfying flavor would help the smoker in a tense situation. The third campaign, the “feels good” campaign, was intended to repress concerns that smokers might have *1125 about smoking by justifying it with the simple slogan “if it feels good, do it; if it feels good, smoke it.” FTC report at 20 (citing internal memorandum dated July 14, 1976). None of these campaigns was cited in the FTC report as an example of Viceroy implementing the MARC report strategy to relate the cigarette to “pot,” wine, beer, and sex. The FTC report stated, however, that Brown & Williamson documents did indicate that the company had “translated the advice on how to attract young ‘starters’ into an advertising campaign featuring young adults in situations that the vast majority of young people probably would experience and in situations demonstrating adherence to a ‘free and easy, hedonistic lifestyle.’ ” FTC report at 20 (citing document titled Viceroy Marketing/Advertising Strategy dated January 26, 1976).

After reviewing the report, Radutzky contacted members of the FTC staff who had drafted the report to confirm that the partial copy of the report he had received from the Kentucky newspaper was accurate. The staff members told Radutzky that they could not send him the confidential documents cited in the report but did confirm that the report and its findings were accurate.

Radutzky also spoke on at least two occasions with Brown & Williamson public relations officer Thomas Humber. At trial, CBS introduced two internal Viceroy documents, which were written by Humber for his superiors, that relate the substance of the conversations that Humber had with Radutzky. In a conversation on November 4, 1981, Humber stated that the internal Viceroy memoranda could only be understood in context. The context included the fact that the Ted Bates agency was told prior to their submission of the memo that it was in trouble on the Viceroy account because Brown & Williamson was unhappy with its work. Humber told Radutzky that Brown & Williamson had not requested any ad campaign similar to the one suggested by Bates. Moreover, he stated that Brown & Williamson had rejected the strategy embodied in the documents submitted by Bates. Humber also noted that “thus far [we] have been unable to find copies of the proposed ads, to the best of our knowledge, no ads as described by the memo were ever actually published.” Radutzky was also informed that partly as a result of Brown & Williamson’s dissatisfaction with the specific proposal submitted by Bates, Brown & Williamson had terminated Bates’ participation in Viceroy advertising. In a conversation with Radutzky on November 5, Humber told Radutzky that all Brown & Williamson ads must have the approval of the legal department and the highest levels of senior management. He also stated that the legal department did not get involved in the creative process and did not review the ads until they “are at the point of worked-up ads.” Humber stated that the proposals referred to in the FTC report were similar to a proposed libelous story that a young inexperienced reporter might submit to his editors but that was corrected by a news organization’s editors and attorneys. Humber stated that in such a case no legitimate criticism could be leveled at the news organization. He clearly implied that because Brown & Williamson had never run any of the controversial proposals as ads, it would be unfair to criticize Brown & Williamson simply because such proposals had been made by individuals who could not authorize an ad campaign.

In addition to contacting Brown & Williamson, Radutzky, on Jacobson’s request, conducted a search for “pot,” wine, beer and sex ads that were used by Viceroy. Unable to locate any such ads, Radutzky reported the result of his search to Jacobson. Radutzky also commented to Jacobson prior to the broadcast that Jacobson’s script for the broadcast omitted Brown & Williamson’s statement that it had never adopted a “pot,” wine, beer or sex strategy. Jacobson did not alter his script.

During the course of his investigation, Radutzky made contemporaneous interview notes and extensive handwritten notes on his copy of the FTC report. In addition, he developed an eighteen-page sample script for the broadcast. The sample script, which was duplicated at least six times and distributed to various people in the newsroom including Walter Jacobson, reported “both sides of the issue.” The jury never saw much of Radutzky’s work product. *1126 Prior to trial, Radutzky destroyed all of his contemporaneous interview notes, five of the ten pages of the FTC report including those pages that contained the recommendations from the MARC report, and fifteen of the original eighteen pages of his sample script. CBS was unable to produce any of the copies of the sample script that Radutzky had distributed in the newsroom.

Radutzky testified that he destroyed his materials as part of a general housecleaning after the original complaint in this case had been dismissed by the district court but before he became aware that Brown & Williamson appealed that dismissal. His destruction of the documents contravened a CBS retention policy that provides that once litigation has commenced “any and all related materials should be retained until specifically released.” The policy also provides that “[o]bviously if there is a ... pending legal action, our policy is to retain all pertinent materials unless specifically released by the Law Department.” Although Radutzky conceded that he did destroy the documents without the approval of the Law Department at CBS, he stated that he was unaware that the policy existed.

When Radutzky destroyed the documents, he was no longer assigned to the Perspective unit and therefore his desk was in a completely different section of the newsroom. Nonetheless, he apparently made a point of “cleaning house” in the Perspective section of the newsroom even though he had not worked there for several months.

Brown & Williamson attempted to prove that Jacobson’s charges were false by introducing every Viceroy advertisement published between 1975 and 1982. They argued to the jury that none of these advertisements was a “pot,” wine, beer, or sex ad. In addition, Robert Pittman, the Brown & Williamson Vice President whose approval was required before any Viceroy ad could be published, testified that he had never seen the MARC report prior to the litigation in this case. Pittman also stated that Brown & Williamson had never asked Bates to design any “pot,” wine, beer, and sex ads. William Scholz, the Bates employee in charge of the Viceroy account, confirmed that Brown & Williamson had never asked Bates to utilize a “pot,” wine, beer, and sex strategy in developing advertisements.

Brown & Williamson put forth evidence that it adhered vigorously to the Cigarette Advertising Code, which bars advertising to persons under 21. In addition to adhering to the Code, Brown & Williamson took the additional step of establishing a detailed procedure to ensure that its advertising agencies did not use models who either were or appeared to be younger than 25. When undertaking advertising campaigns that involved the distribution of samples, Brown & Williamson required the individuals distributing the samples to sign statements promising not to distribute cigarettes to people under 21.

Walter Jacobson also testified at trial. Jacobson indicated that he had read the FTC report prior to delivering his Perspective and was aware that the FTC report was quoting a document prepared by Market and Research Counselors. He agreed that the way in which the Perspective was delivered, with the Viceroy graphics on the screen at the time he was referring to the “pot,” wine, beer, and sex strategy, would convey the impression that the “pot,” wine, beer, and sex comment was made by Viceroy itself rather than MARC. After agreeing that such an impression would be created, Jacobson added that “I even said that, ‘Viceroy says.’ ”

Jacobson’s testimony indicated that he had reviewed Radutzky’s sample script pri- or to delivering the Perspective. Jacobson corroborated part of Radutzky’s testimony by confirming that Radutzky had told him that he had been unable to find any ads showing that Brown & Williamson had implemented a “pot,” wine, beer, and sex advertising strategy. Jacobson was also aware that Radutzky had spoken with Brown & Williamson and that the company denied adopting the strategy and therefore had no advertisements that they could supply that would reflect that strategy. According to Jacobson, he paraphrased Viceroy’s denial in the broadcast when he stat *1127 ed “Viceroy insists ... whose fault is it that children are smoking? It’s not ours.”

Jacobson also agreed, at least at one point, that it would be fair to say that when he wrote the Perspective script he wrote it in the present tense with respect to Viceroy and the purported “pot,” wine, beer, and sex strategy. For example, he agreed that when he used a phrase such as “[t]hat’s what Viceroy is saying,” he realized that it would be interpreted by any reasonable listener as referring to the present tense. At other points during his testimony, however, Jacobson appeared to state that some language used during the broadcast was past tense. While recognizing that there was no indication in the Perspective that the strategy mentioned in the MARC report had been recommended in 1975, six years before the broadcast, Jacobson testified that because the FTC report described it as “the Viceroy strategy” he did not believe that he gave the viewer “an impression of time that varies from the facts.” Under further questioning, Jacobson did agree that the phrase “[a]n attempt should be made, says the Viceroy slicksters to relate the cigarette to ‘pot,’ wine, and beer” would be “more current” than the phrase “the Viceroy strategy.” 2

Jacobson also noted that there was a distinction between a report, an analysis, a commentary and an editorial. An example of a report, according to Jacobson, would be if a newsperson went on the air and said “[t]he FTC says that Viceroy did such and such, and Viceroy says it did not.” He agreed that when delivering such a statement a reporter should try to be fair and accurate. Jacobson also stated that “[m]y life is research” and indicated that what he said in the Perspective was “absolutely true.”

On direct examination, Jacobson’s counsel brought out his client’s state of mind at the time of the broadcast. Jacobson asserted that he “believed” at the time he delivered the Perspective that it was truthful and that it was a fair and accurate summary of what the Federal Trade Commission had said about Viceroy cigarettes. Jacobson also testified about what he “intend[ed]” to inform the viewers about Viceroy when he “sat down to write” the Perspective. When cross examined, Jacobson confirmed that he had testified on direct examination about what he was thinking when he wrote the script and attempted to refute the allegation that he “really [had] no recollection at all of what [he] thought about in” preparing the script by stating that such an assertion was “absolutely untrue.” Brown & Williamson’s counsel then read Jacobson’s 1984 deposition in which the following exchange took place:

Question: I just want to know if you have a recollection whether in 1981, when you called the manufacturers of Viceroy cigarettes liars, you were attempting then to be objective?

Jacobson: I don’t remember what I was thinking now when I wrote that three and a half years ago.

Question: Can you recall whether when you wrote the November 11, 1981 script, you were trying to fairly present both sides of the question?

Jacobson: I don’t remember what I was thinking when I wrote that script. It’s hard to remember three and a half years ago.

Question: You don’t remember what was in your mind?

Jacobson: Right.

Question: You do remember you wrote the script though?

Jacobson: I don’t remember writing it. I do see it.

Question: You don’t remember writing it?

Jacobson: Yes, I mean — I don’t remember sitting at my typewriter, what I was thinking and how my hands were working. I see the script. It has a date. I wrote it, obviously, and I remember being involved in a series of reports on that subject.

On redirect examination, Jacobson asserted that his recollection of his state of mind at the time of the broadcast had improved *1128 from the time of his deposition to the time of the trial because he had “gone over everything that ha[d] been given to [him] by a whole team of lawyers” including the script that he used during his Perspective and the videotape of the actual broadcast. Jacobson stated that as a consequence his memory was jarred and he was able to “just recall more specifically some things that I didn't recall from before."

II.

Concerned that traditional state law actions for defamation might interfere with the First Amendment guarantees of free expression, the Supreme Court held in the landmark case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that a public official could recover in a libel action only if the official was able to show that the alleged defamatory 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.” Id. at 279-80, 84 S.Ct. at 726. This constitutional standard, which was extended to public figures such as Brown & Williamson in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), requires that the plaintiff prove by “clear and convincing evidence” that the defendant either knew the statement was false or “in fact entertained serious doubts as to [its] truth. . . . .” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).

In New York Times, the Supreme Court also outlined the role that a reviewing court must play in insuring that the First Amendment is not infringed upon. In reviewing a defamation verdict, courts must exercise particularly careful review. They “must ‘make an independent examination of the whole record,’ ... so as to assure [themselves] that the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times, 376 U.S. at 285, 84 S.Ct. at 729 (quoting Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963)); see also Tavoulareas v. Piro, 817 F.2d 762, 776-78 (D.C.Cir.1987) (en banc). In Bose v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), the Court reaffirmed the New York Times mandate of independent appellate review that it had applied “uncounted times before.” Id. at 514, 104 S.Ct. at 1967. The Court stated that “[t]he question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact.” Id. at 511, 104 S.Ct. at 1965. The Court held that appellate judges “must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.” Id. Jacobson and CBS argue that Bose mandates independent appellate review of all issues of “constitutional fact,” see Bose, 466 U.S. at 508 n. 27, 104 S.Ct. at 1964 n. 27, which they contend includes the issues of falsity and opinion. Brown & Williamson counters that Bose allows expanded appellate review “solely of the issue of actual malice, and of no other question.” Appellee’s Brief at 7 (citing Bose, 466 U.S. at 514 n. 31, 104 S.Ct. at 1967 n. 31). There is also a dispute about what independent appellate review means. The District of Columbia Circuit in Tavoulareas v. Piro, 817 F.2d 762 (D.C.Cir.1987), recently summarized the two positions. “Under one view, Bose’s mandate of de novo review means precisely that, with no deference at all to be accorded any jury finding germane to actual malice. Under the contrary view, Bose does not alter the traditional rules governing the review of jury verdicts and thus judicial deference is constitutionally mandated to presumed jury findings of underlying facts, evaluations of credibility, and the drawing of inferences.” At 776-77.

The extent to which Bose mandates independent appellate review “as to findings of underlying facts, evaluations of credibility, and the drawing of inferences” is still an open question. See Tavoulareas, at 777 (declining to decide the issue). But see Tavoulareas, at 806 (Wald, C.J., concurring in judgment) (arguing that Tavoulareas majority does “reexamine and reject ‘permissible’ inferences which the jury might have drawn to support their verdict”). We decline to “tackle the knotty constitutional *1129 issue regarding what constitutes independent review under Bose. . . .” Tavoulareas, at 777. We also decline to decide whether Brown & Williamson is correct in arguing that Bose’s mandate of independent appellate review encompasses only the issue of actual malice.

We can avoid these issues by accepting, for purposes of this case only, the defendants’ argument that Bose mandates a wide-ranging appellate review, with little or no deference to the jury’s findings, of all aspects of this case including falsity and opinion. We emphasize that we are not deciding the correctness of the defendants’ interpretation of Bose. Rather, we are applying their interpretation because we can avoid the difficult issues left unresolved by Bose without affecting the outcome of this case because both deferential and de novo review yield the same result.

Of course, even under defendants’ interpretation of Bose, there is a limit to the amount of independent review that an appellate court can engage in. For example, we are incapable of making complete credibility determinations because we are unable to observe the demeanor of witnesses. We can, however, review the transcript of a witness’s testimony and determine whether the record would give us any reason to question the jury’s credibility findings. When the record fully supports the jury’s determinations, as in this case, Bose obviously requires the appellate court to affirm the decision below. In short, we do not believe, nor do defendants argue, that Bose requires an appellate court to believe the unbelievable and to accept the untenable. At most, Bose requires an appellate court to review all the findings below, to the extent that it can within the confines of an appellate record, and determine whether the judgment below is correct. In our discussion, we will undertake a thorough review of all aspects of this case including opinion, falsity, fair summary, and actual malice and determine whether the evidence supports the jury verdict.

III.

CBS and Jacobson raise three main liability defenses. First, they contend that the broadcast was an expression of editorial opinion protected by the First Amendment. Second, they argue that the statements of fact that were in the broadcast, including the summary of the FTC report, were substantially true. Finally, they assert that Brown & Williamson did not meet its burden of proving actual malice.

A. Opinion

Both parties ask us to apply a test used by the District of Columbia Circuit, see Ollman v. Evans, 750 F.2d 970 (D.C. Cir.1984) (en banc) (plurality opinion of Starr, J.), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985), in deciding whether Jacobson’s Perspective was opinion protected from a defamation suit by the First Amendment. 3 Under the test, a court must first analyze whether the statement has “a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous.” 750 F.2d at 979. Second, a court must consider whether the statement is capable of being objectively characterized as true or false. Third, a court should review the full context of the statement because the language surrounding an alleged defamatory statement may influence “the average reader’s readiness to infer that a particular statement has factual content.” Id. Fourth, in addition to considering the immediate context in which a statement is made, a court should also consider the broader social context into which the statement fits. Id. at 983.

In support of their argument that the literary and social context in which the Perspective was made requires this court to conclude that the Perspective was opinion protected by the First Amendment, defendants note that Jacobson delivered his Perspective away from the anchor desk *1130 with the word “Perspective” written on the screen near Jacobson’s signature. They also argue that because the Perspective was delivered in a vehement and caustic manner and the phrase “the killer business” was used near the beginning of the Perspective, viewers should have been alerted to Jacobson’s harsh opinion of the techniques of cigarette advertisers. They cite as an example Jacobson’s statement that the cigarette “slicksters ... are not slicksters, they’re liars.” In addition, defendants argue that the use of phrases such as “slicksters,” “the killer business,” “hook ’em while they’re young,” “addicting the children to poison,” and “they’re liars,” show that the broadcast when considered in context is really protected opinion. CBS’s opinion argument appears to be best summarized by their contention that “[t]he tone of the broadcast should have immunized CBS and Mr. Jacobson from liability — not exposed them to it.” Appellant’s Brief at 34.

In making its “context is determinative” argument, CBS ignores some important facts. First, Jacobson’s co-anchor began his introduction for the Perspective by stating that “Walter has been reporting [for the past two nights] on the companies that make cigarettes and the clout they carry in Washington.” (Emphasis added.) In completing the introduction, Jacobson’s co-anchor stated that “[t]onight he has the last in his series of special reports, a look at how the cigarette business gets its customers.” The Perspective was also promoted during the day of the broadcast as “[t]obacco industry hooks children ... Tonight at 10:00.” The introduction itself and the promotional advertisements would appear to lead reasonable viewers to believe that what they were about to hear was a news report by Walter Jacobson. In addition, the literary context in which the statement was made also provides no assistance to CBS. CBS concedes, as it must, that the entire Perspective was filled with specific examples of cigarette marketing techniques that would attract young people. Rather than preparing the viewer for Jacobson’s opinion about Viceroy, the literary context prepared the viewer for an example of how Viceroy went about attracting young smokers. An example (whether true or not) is exactly what Jacobson provided.

The defendants appear to realize that the literary and social context does not automatically immunize the entire broadcast as opinion because they concede that “not ... every statement in the broadcast is automatically immune from factual analysis.” Appellant’s Brief at 37 n. 14. De