Rehearing and Rehearing In Banc Denied March 27, 1981.
OPINION OF THE COURT
ADAMS, Circuit Judge.
This appeal from a summary judgment in favor of the defendant presents an important question concerning the law of defamation. We must review the district court's determination that a news magazine enjoys a privilege, under the common law of Pennsylvania, to publish a summary of FBI documents identifying the plaintiff as a member of an organized crime "family." We affirm.
In its March 6, 1978 issue, Time magazine published an article describing suspected criminal activities of then-Congressman Daniel J. Flood. The article stated that Stephen Elko, a former Flood aide, had characterized the Congressman as a "muscler" — an official who used his considerable influence to direct federal contracts to individuals and companies that responded with cash. The article further stated that at least eight separate United States Attorneys' offices had undertaken investigations of Flood's activities.
As an example of suspected misconduct, the Time article listed the following:
Circulation of the March 6, 1978 issue of Time exceeded four million copies.
Following publication of the article, Medico instituted a defamation action against Time, Inc., in federal district court on the basis of diversity jurisdiction.
Time initially moved for summary judgment in June 1979. It asserted that the substance of the article was not that Medico actually participated in criminal activities, but only that FBI agents had recorded Russell Bufalino's description of Medico as a Mafia capo. Time argued that this latter statement was true. In support of its motion, Time submitted the affidavit of John Danahy, a former FBI official, and two documents — an FBI report on "La Cosa Nostra, Philadelphia Division," and a personal profile report on Philip Medico — which Danahy identified as official FBI documents. Both documents state that an "informant" alternately code-named "PH T-3" and "PH 591-C*" has identified Medico as a close associate of Russell Bufalino and a "capo" or "capodecina" in La Cosa Nostra. The affidavit states that La Cosa Nostra is the FBI's term for the Mafia, and that the "informant" was not a person, but an electronic listening device, by means of which a recording had been made.
The district court agreed with Time that the substance of the allegedly defamatory article was that the FBI had recorded Bufalino's identification of Medico as an underworld leader. It concluded, however, that the supporting documents which Time submitted did not resolve all genuine issues concerning the truth of its report. Although the FBI documents corroborated the Time article, the court ruled that the affidavit Time had advanced to authenticate the documents was not based on the personal knowledge of the affiant, as required by Rule 56(e). The court therefore denied Time's motion for summary judgment.
In January 1980, Time again moved for summary judgment based on the substantial truth of its publication. Time resubmitted the two FBI documents it had proffered to support its initial motion, supplemented with affidavits of two FBI agents. One affiant, David Breen, had supervised an investigation of organized crime that the FBI's Philadelphia Office had conducted. He stated that the Philadelphia Office had prepared the report on La Cosa Nostra at his direction, and that Medico's personal profile card had been prepared and maintained by the FBI. Breen further stated that, based on his personal experience with the FBI, he knew from the code names
On this occasion the district court granted Time's motion for summary judgment, but not on the basis of the truth defense. The court expressed doubt about its earlier conclusion that, in order to prevail on a truth theory, Time need only establish that FBI agents recorded Bufalino's description of Medico, rather than that Medico was in fact a Mafia chieftain. The court acknowledged that Pennsylvania law might require proof of the underlying assertion, but decided it did not have to resolve the issue; the court concluded that, whether the statement sued upon be given a broad or narrow scope, the evidentiary affidavits that Time submitted failed to establish the truth defense. Although the court found that the affidavits established the authenticity of the FBI report and personal file card as FBI materials, it also determined that neither affiant had personal knowledge of the "factual basis" for the documents. Neither Breen nor Collins had installed the listening devices allegedly used in recording Bufalino's conversations, had transcribed the recorded conversations, or had personal knowledge of the identity of all the participants in the relevant conversations.
After declining to hold for Time on the truth theory, the district court considered whether the Time article fell within the common law privilege accorded the press to report on official proceedings. The judge seemed troubled because Pennsylvania courts apparently had so far extended the privilege only to reports of proceedings open to the public, whereas Time had summarized reports which the FBI had kept secret and whose release to Time evidently had been unauthorized. But after an exhaustive analysis of Pennsylvania precedents, the court concluded that Pennsylvania courts, if presented with the question, would find summaries of non-public government reports within the privilege. The district judge then ascertained that the Time article represented a fair and accurate account of the FBI documents. Accordingly he held that the publication was privileged, and awarded summary judgment in favor of Time.
On appeal, Medico argues that the district court incorrectly determined that Time's publication was privileged under Pennsylvania law. Time counters that the district judge accurately construed the applicable state law on privilege, and contends further that the defense of truth applies and affords an alternate basis for affirming the district court. Our analysis of the district court's result will entail examination of the state law precedents regarding the fair report privilege, of the policies underlying them, and of Constitutional constraints on defamation law.
The fair report privilege on which the district court relied developed as an exception to the common law rule that the republisher of a defamation was subject to liability similar to that risked by the original defamer.
To ameliorate the chilling effect on the reporting of newsworthy events occasioned by the combined effect of the republication rule and the truth defense, the law has long recognized a privilege for the press
Unlike many states,
Section 611 of Restatement (Second) provides:
With respect to the present controversy, the basic inquiry is whether Time's summary of FBI documents concerning Philip Medico is
The district court examined and rejected the possibility that the FBI reports in question are not "official" because they are not generally available to the public. Medico does not challenge this reasoning on appeal, and we perceive no need to rehearse arguments that the district court has already canvassed. Medico contends before this Court that the FBI documents should not be deemed "official" because they express only tentative and preliminary conclusions that the FBI has never adopted as accurate. He points out that the title page to the FBI report on La Cosa Nostra bears the following legend: "This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency."
Neither the text of Section 611 nor the accompanying comments dispose of the issue Medico raises. Section 611 itself speaks only of "official" action or proceedings, without elaborating on when a statement is made in an official capacity. Comment d provides some support for locating the FBI documents concerning Medico within the scope of the privilege. That comment states: "The filing of a report by an officer or agency of the government is an action bringing a reporting of the governmental report within the scope of the privilege." In the present case, the FBI included its information on Medico in a report on the Philadelphia activities of the Mafia, and forwarded it for inclusion in a report on nationwide organized crime.
But another comment casts doubt on the applicability of the fair report privilege to the FBI materials. Comment h indicates that, while a report of an arrest or of the charge of crime falls within the privilege, "statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of [a] judicial proceeding or of the arrest itself and are not privileged." Because the FBI's information concerning Medico never led to an arrest or prosecution, the FBI materials may be thought to stem from such an early stage of official proceedings that the Section 611 privilege does not attach.
Pennsylvania cases predating the publication of Restatement (Second) also fail to resolve definitively whether summaries of criminal investigatory files fall within the privilege. The two cases most nearly on point, however, strongly support Time's defense. In Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963), the defendant newspaper had published three articles based on the "Reuter Report," a study, commissioned by then-Governor of New York, Averell Harriman, of the activities and associations of individuals who had attended a meeting of alleged organized crime figures.
A decision by a federal district court construing Pennsylvania law also supports application of the privilege to Time's publication. In Hanish v. Westinghouse Broadcasting Co., 487 F.Supp. 397 (E.D.Pa.1980), the court held that the privilege applied to a news report summarizing a civil complaint that contained defamatory accusations and that had formed the basis for a temporary restraining order.
Assuming the court in Hanish correctly predicted Pennsylvania law, we think that decision supports application of the Section 611 privilege to the present case. FBI files seem at least as "official" as the pleadings in civil cases. Although civil complaints are instituted, for the most part, by private parties, the FBI documents concerning Medico were compiled by government agents acting in their official capacities. Moreover, the danger that a civil litigant will willfully insert defamatory assertions in his complaint generally would appear at least as great as the risk that a criminal investigatory agency will knowingly include false or malicious statements in its files. If Pennsylvania courts would grant the privilege to newspaper accounts of civil complaints on which a court has acted ex parte, we think it likely that they would grant the privilege to republication of defamatory items from the FBI materials on Medico.
Three policies underlie the fair report privilege, and an examination of them provides further guidance for our decision today. Initially, an agency theory was offered to rationalize a privilege of fair report:
A theory of public supervision also informs the fair report privilege. Justice Holmes, applying the privilege to accounts of courtroom proceedings, gave the classic formulation of this principle:
Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). The supervisory rationale has been invoked in the context of executive action as well.
We believe the public supervision rationale applies to the present case. As public inspection of courtroom proceedings may further the just administration of the laws, public scrutiny of the proceedings and records of criminal investigatory agencies may often have the equally salutary effect of fostering among those who enforce the laws "the sense of public responsibility." For example, exposing the content of agency records may, in some cases, help ensure impartial enforcement of the laws.
It is not necessary for us to decide, however, whether the supervisory rationale is relevant to every republication of documents found in FBI files. For any general supervisory concern with respect to the FBI is heightened in the present case by the public's interest in examining the conduct of individuals it elects to positions of civic trust. Elected officials derive their authority from, and are answerable to, the public. If the citizenry is effectively and responsibly to discharge its obligation to monitor the conduct of its government, there can be no penalty for exposing to general view the possible wrongdoing of government officials. Because the alleged defamation of Medico occurred in an article analyzing the conduct of former Congressman Flood, we believe it implicates this aspect of the supervisory rationale. Moreover, even though Time's publication arguably may have tarnished the reputation of Medico, a private individual,
A third rationale for the fair report privilege rests, somewhat tautologically, on the public's interest in learning of important matters.
Because the Time article focused on organized crime, we think the informational rationale is especially relevant. The district court in the case at hand commented on the difficulty of gathering information pertaining to organized criminal activity: "Due to the size, sophistication and secrecy of most organized criminal endeavors, only the largest and most sophisticated intelligence-gathering entities can monitor them effectively. In practice this task has been taken up primarily by the Justice Department of the federal government and, in particular, by the FBI." Indeed, the documents that Time summarized had been compiled by a government agency. In light of the difficulty in obtaining independent corroboration of FBI information, the press may often have to rely on materials the government acquires if it is to report on organized crime at all. We believe Time's publication of FBI materials mentioning Medico served a legitimate public interest in learning about organized crime.
Care must be taken, of course, to ensure that the supervisory and informational rationales not expand into justifications for reporting any defamatory matter maintained in any government file. Personal interests in privacy are not to be taken lightly, and are not to be overborne by mere
Constitutional considerations also help resolve the present dispute. Although the Supreme Court has never explicitly recognized a constitutional privilege of fair report, several of its recent decisions point toward that result. While we need not decide today whether the First Amendment requires a privilege for the press to report on official acts and proceedings regardless of whether they contain defamatory information, we find that analysis of the constitutional issues reinforces our prediction that Pennsylvania would, as a matter of common law, apply the fair report privilege to Time's publication about Medico.
Two cases from outside the field of defamation reflect the Supreme Court's recognition of the First Amendment value of reports of official proceedings. In Cox Broadcasting v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Court ruled that the First Amendment precludes a cause of action for invasion of privacy brought about by publication of the name of a deceased rape victim. The Court noted: "Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media." Id. at 495, 95 S.Ct. at 1046. In addition to these comments, which emphasize the informational rationale for the fair report privilege, the Court stressed the supervisory duties of the public: "The citizenry is the final judge of the proper conduct of public business.... With respect to judicial proceedings in particular, the function of the press serves ... to bring to bear the beneficial effect of public scrutiny upon the administration of justice." Id. at 495, 492, 95 S.Ct. at 1046, 1044.
While Cox Broadcasting arose from a news report based on judicial records open to public inspection, the Court's commitment to dissemination of information of interest and value to the public seems just as apposite when, as here, the press reports on materials not open for inspection. Moreover, the Court in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), extended the protective mantle of the First Amendment to a report of a proceeding closed to the public. The Court there held that a state may not impose criminal sanctions on those who publish information regarding proceedings before a state judicial review commission, even when the state constitution and laws declare the proceedings confidential. The Court again stressed the need for public knowledge of the affairs of government: "`A major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.' ... Neither the Commonwealth's interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here. Id. at 838, 841, 98 S.Ct. at 1541, 1542 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966)).
Landmark Communications, like Cox Broadcasting, does not strictly control the issue before us — for Landmark arose in the context of criminal sanctions,
Closer to the facts in our case is Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), which some commentators have interpreted as elevating the fair report privilege into a constitutional requirement.
The precise issue presented to the Supreme Court was whether there was sufficient evidence for a jury to conclude that Time magazine, in omitting to mention that the charges of brutality were allegations of a complainant rather than findings of the Commission, had published material it knew to be false, or had acted in reckless disregard of the truth.
Although this Court, in dicta, has declined to follow Edwards, see Dickey v. CBS, Inc., 583 F.2d 1221, 1225-26 (3d Cir. 1980), other federal courts have, as a matter of federal law, expressed reluctance to hold the press responsible for publication of defamatory statements originally uttered by others.
We are careful to point out that we do not decide at this time that the First Amendment immunizes a newspaper's republication of a defamation arising in connection with a matter of public interest, and originally authored by a government source. But we believe that the solicitude that both the Supreme Court and other federal tribunals have expressed for the press in such circumstances might well influence the Pennsylvania Supreme Court's application of its common law privilege of fair report.
Once the libel defendant establishes the existence of a "privileged occasion" for the publication of a defamatory article, the burden returns to the plaintiff to prove that the defendant abused its privilege. Sciandra v. Lynett, 409 Pa. 595, 601, 187 A.2d 586, 589 (1963). Pennsylvania recognizes two forms of "abuse": the account of an official report may fail to be fair and accurate,
We agree with the district court that nothing in the record suggests that the Time article unfairly or inaccurately reported on the FBI materials. Medico asserts that Time's failure to mention the legend on the FBI report on the Philadelphia Branch of La Cosa Nostra renders its story unfair. No similar legend, however, appears on the FBI's personal file card on Medico, which is an independent source of the information reported. Moreover, nothing in the Time article expresses a "recommendation" or "conclusion" on the part of the FBI concerning Medico's participation in Mafia activities. The article simply says that FBI "agents tape-recorded Bufalino's description of Philip as a capo (chief) in his Mafia family."
Medico also insists that, because the FBI files identify the "informant" only by a code name, it is impossible to ascertain whether Time's summary was accurate. But the uncontradicted affidavits of Breen and Collins establish that the code names refer to electronic listening devices that the FBI planted in the Philadelphia area. Time has accurately portrayed the FBI records as indicating that Medico has been identified as part of the Bufalino crime family.
Medico further contends that Time can avail itself of the fair report privilege only if it actually based its article on the FBI materials; if the report reflects the contents of the official materials merely by coincidence, the privilege does not attach. Medico maintains there is a genuine issue of fact whether Time employees worked with the FBI materials in preparing the article.
Pennsylvania law squarely contradicts this argument. In Binder v. Triangle Publications,
We conclude that Time's publication of an allegedly defamatory article concerning Philip Medico falls within the scope of the Pennsylvania common law privilege of fair report, and that Medico has failed to establish a genuine issue of fact concerning a possible abuse of the privilege. We therefore find it unnecessary to address Time's alternative argument for affirmance: that the affidavits it submitted establish the substantial truth of its publication. In particular, we need not examine the issue, left unresolved by the district court, whether under Pennsylvania law repetition of another's words relieves the press of the need to prove the truth of the underlying assertion as long as it accurately ascribes all it says to the original utterer.
The judgment of the district court granting Time's motion for summary judgment will be affirmed.
Under Pennsylvania law, a defamation claim consists of two basic elements. First, the communication must be defamatory in nature and understood as such by the recipient. Corabi v. Curtis Publishing Co., 441 Pa. 432, 441-42, 273 A.2d 899, 904 (1971); 42 Pa.Cons.Stat.Ann. § 8343(a)(1) to (4) (Supp.1979). Before this court, Time does not dispute the defamatory nature of its statements concerning Medico. Second, the communication must be uttered maliciously — that is, intentionally or negligently and "without just cause or excuse." Corabi v. Curtis Publishing Co., 441 Pa. at 451, 273 A.2d at 909; 42 Pa.Cons.Stat.Ann. § 8344 (Supp.1979). This malice component is "implied or presumed to exist from the unprivileged publication of defamatory words actionable per se." Corabi v. Curtis Publishing Co., 441 Pa. at 451, 273 A.2d at 909 (emphasis deleted). On this appeal, then, the sole issue is whether Time can negate the presumption of malice by establishing that its publication was privileged.
Although the common law placed the burden of proving truth on the defendant, this allocation may run afoul of recently announced constitutional principles. See note 38 infra. Because we dispose of the present case on the basis of the fair report privilege, we have no occasion to resolve this constitutional issue, or to consider whether Pennsylvania courts would continue to apply the republication rule to a newspaper account of defamatory remarks, see Part VII & note 42 infra.
Some jurisdictions rely on the informational rationale to extend the privilege to accounts of the proceedings of public meetings of private, nongovernmental organizations, as long as the meeting deals with matters of concern to the public. See Barrows v. Bell, 73 Mass. (7 Gray) 301, 313 (1856); Pinn v. Lawson, 72 F.2d 742 (D.C.Cir.1934) (meeting of parish church board); Borg v. Boas, 231 F.2d 788, 794-95 (9th Cir. 1956) (meeting calling on judge to convene grand jury). The British Defamation Act of 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, c. 66, § 7, extended the privilege to reports of "proceedings at any public meeting ... bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern."
Under the fair report privilege, the accuracy of C relieves Time of liability. If the privilege did not apply, however, we would have to ascertain whether Pennsylvania law would exonerate Time on the basis of the truth defense if Time established the truth of B, or whether Time would have to prove A. In light of our holding that Time's publication comes under the fair report privilege, we need not dispose of this question. In addition, we need not review the district court's determination that Time has failed to demonstrate the truth of either A or B.