JULIAN v. AM. BUS. CONSULTANTS


2 N.Y.2d 1 (1956)

Joe Julian, Appellant, v. American Business Consultants, Inc., et al., Respondents.

Court of Appeals of the State of New York.

Decided July 11, 1956.


Attorney(s) appearing for the Case

Osmond K. Fraenkel and William J. Butler for appellant.

Ira M. Millstein, Edward C. Wallace, Charles B. McGroddy, Jr., and Milton Haselkorn for respondents.

CONWAY, Ch. J., DYE, FROESSEL and VAN VOORHIS, JJ., concur with BURKE, J.; FULD, J., dissents in an opinion in which DESMOND, J., concurs.


BURKE, J.

The complaint in this libel suit was dismissed at the close of the plaintiff's case, on the ground that plaintiff did not prove that libelous matter had been published of and concerning him. The Appellate Division unanimously affirmed. The appeal is before us by leave of this court.

Plaintiff contends there was a question of fact which should have been submitted to the jury concerning alleged defamatory and alleged untrue statements referring to the plaintiff, contained in a book of 213 pages entitled "Red Channels", published in 1950.

The complaint alleges that the publication was intended to, and did, convey to the public that the plaintiff, an actor, was either a Communist dupe, tool, sucker, part of a transmission belt, fellow-traveler, or a "red channel", all of which was false and malicious and held the plaintiff up to public ridicule and contempt, and prejudiced his opportunities to earn a living. The amended answer generally denies the allegations except publication, specifically denies malice and damage, and pleads truth and fair comment as complete defenses.

The text of the book is divided into three sections, Part I, an introduction, Part II, an alphabetical index of 151 names, and Part III, an alphabetical index of organizations.

The reference in the book to the plaintiff is at page 90 and reads:

  "Joe Julian                      Reported as:
  Actor — Radio

  Artists' Front                   Speaker. Meeting, 10/16/42.
  to Win the War                 House Un-Am. Act. Com.,
                                   Appendix 9, p. 575

  National Council of the          Attended meeting to abolish
  Arts, Sciences and             House Un-American Activities
  Professions                    Committee, Hotel Commodore,
                                   NYC, 1/9/49.
                                   NY Journal-American,
                                   12/30/48."

The charge is made that this reference when read in connection with the title cover and an introduction of about 1,500 words contained in the first eight pages of the book, creates the impression that plaintiff was a Communist, or sympathizer, dupe, tool, sucker or part of a transmission belt, fellow-traveler or a "red channel". The selected words and phrases taken out of their context by plaintiff and massed in the pleading are used in different concepts. The meaning of the words and phrases, when read in context, is quite different.

The introduction states in substance that the Communists seek to exploit radio and television in order to insure procommunist propaganda, financial support, and the appearance of television and radio personalities at Communist front meetings so as to exercise a strong influence over American broadcasting and telecasting. In this effort, the authors say, skilled and talented citizens are denied employment, while procommunists, their personal friends and performers at Communist front meetings, are not only employed but "boosted" to stardom. In turn these successful performers are called upon for contributions and more frequent appearances at meetings as their prestige with the public increases — all for the greater good of the Communist cause. These efforts, innocent or not, it is opined, result in an infiltration into and dominating influence over two of the most effective propaganda instrumentalities of this era.

The critics of this alleged policy are, of course, entitled to be heard. However, if the publication is libelous and indefensible, it is actionable.

Since there are at least 10 candidates for each job in television and radio, the described secret discrimination, if it exists, is the rankest type of bigotry and intolerance. It violates the rights of the skilled and talented citizens seeking positions in the business, and also the right of the public to know that the people who enter their homes over the radio, and on the television screens, truly represent the American People. The public interest is manifest, as the airways belong to the public not to the performers, not to the sponsors, not to the advertising agencies, not to the stations, not to the networks, and not to the government. There are 52,000,000 radio homes and 135,000,000 radio sets and 38,000,000 television sets in this country.1 Television and radio stations are controlled by the government in other countries. In this country they are generally privately owned and operated. Publishers have the right to inform the public about the people in an industry of communication which reaches into every home in this country and many homes abroad. Such information necessarily must be based on facts from which reasonable inferences may be drawn.

The preface to Part II of the alphabetical index of names states the purpose in listing the names. It reads: "The information set forth in the following report is taken from records available to the public. The purpose of this compilation is threefold. One, to show how the Communists have been able to carry out their plan of infiltration of the radio and television industry. Two, to indicate the extent to which many prominent actors and artists have been inveigled to lend their names, according to these public records, to organizations espousing Communists causes. This, regardless of whether they actually believe in, sympathize with, or even recognize the cause advanced. Three, to discourage actors and artists from naively lending their names to Communist organizations or causes in the future." (Emphasis added.)

The plaintiff conceded that he had attended the meetings, and that the two organizations were properly characterized as Communist fronts. As to the introduction, the supplemental bill of particulars of the plaintiff states: "in general, the picture of the Communists and what they stand for and the endeavor of Communists to infiltrate into the radio and television fields would not be questioned by us, and we agree that you don't have to prove this".

Defendants argue that the truth of the above facts being undisputed, the book and the evidence establish the defense of fair comment as well as the insufficiency of the complaint.

The introduction and purpose statement of Part II mentions "innocents", "well-intentioned liberals", persons who "advance Communist objectives with complete unconsciousness", "genuine liberals", "actors and artists have been inveigled to lend their names * * * whether they actually believe in, sympathize with, or even recognize the cause advanced", in addition to "Communist", "fellow traveler", or "part of a transmission belt". There is no allusion in the book, containing 151 names, to indicate in which, if any, of the categories the plaintiff belongs. It does show he was not in the category of a member of the Communist party.

The Communist attempts to infiltrate American life are matters, needless to say, of the deepest and broadest concern.

In this State and this country, every citizen has a constitutional right to free speech. The law of libel is a limitation on the right of every citizen to write freely. Just as the constitutional right of free speech must be extended to all our citizens equally and without discrimination, so also the limitations must be based upon a rule or doctrine which does not create a preference or discrimination in favor of or against any citizen or group of citizens. We may not brush aside constitutional rights by setting up a double standard for comment. Any invasion of the freedom of the press justifies a concern about the inviolability of that great right.

In furtherance of the preservation of the right to write freely, the law of libel recognizes fair comment as a complete defense to a charge of a libelous publication. The comment must be fair. It must be a reasonable inference from facts truly stated. The basis of the right of comment is a public thing or act. We know from experience that political subjects are always controversial. They elicit divergent opinions. The same act may be greeted with praise, indifference or denunciation. The protection of political comment which has been written because the circumstances are of public interest, is indispensable to the exercise of freedom. This right every citizen possesses as a citizen. It is not merely a privilege. Editors, actors, writers, teachers and lawyers enjoy no higher right. The constitutions guarantee a right to all citizens to criticise the government and governmental bodies. The defenders of the activities of government have an equal right to criticise the critics. Criticism in political debates is biased, unkind and hostile, but nevertheless, not actionable.

In this case there is more than proof of the usual political activity. There is an admission that the plaintiff appeared at two Communist front meetings and a concession by the plaintiff that the Communists are attempting to infiltrate television and radio.

The plaintiff, an actor in the radio and television industry, a major medium in the shaping of public opinion, performed a public act in appearing and reciting at the meetings organized by Communist fronts. With frequent access to the radio and television audience, actors, writers, directors and producers can and do mold the thinking of our citizens to a degree far greater than our leaders in political, economic, philosophic or religious life, who cannot afford to or do not utilize these media extensively.

With these circumstances in mind, even if defamatory matter could be deemed to have been published of and concerning the plaintiff, we nevertheless hold that the defense of fair comment is complete as a matter of law. If the public figure's political activities at sponsored Communist front rallies cannot be criticized, and his presence on radio or television cannot be challenged as being opposed to the national interest, then there is no field of fair comment.

"Like all other questions, whether comment is a complete defense may so appear from the plaintiff's pleadings or on the trial so as to warrant a court in deciding its sufficiency as a matter of law" (Seelman on Libel and Slander, Ch. XIII, par. 246; Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 260 N.Y. 106; Hall v. Binghamton Press Co., 263 App. Div. 403, affd. 296 N.Y. 714).

The plaintiff has admitted, as true, what is said in the introduction of the book concerning the interest of the Communists in the television and radio industries, what they stand for and their endeavors to infiltrate radio and television.

The plaintiff has conceded that he attended the Communist front meetings as reported in the book, and that the two organizations were properly characterized as Communist fronts. The introduction states that an individual, lending his name and presence to such activities, does this knowingly or unknowingly. The introduction concludes that in its opinion in both cases the resulting injury to the public is the same, for in each case a publicized name or person has been used to promote the purpose of communism. Such an inference from admittedly true facts is not only reasonable but ineluctable, and one in accord with the plaintiff's own statement as to the purposes of Communists in radio and television.

We have held that even in the absence of admission as to the truth of the facts, it is sufficient if the facts form a reasonable basis for inference and the comment connected with the facts. "A comment is fair when it is based on facts truly stated and free from imputations of corrupt or dishonorable motives on the part of the person whose conduct is criticized, and is an honest expression of the writer's real opinion or belief." (Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 260 N.Y. 106, 118, supra [tax dodging]; Hall v. Binghamton Press Co., 263 App. Div. 403, affd. 296 N.Y. 714, supra [friend of fifth columnists].) Under the rule of fair comment even if the publication holds one up to public ridicule, contempt and reproach or prejudices one in his opportunity to earn a living, nevertheless it is not actionable if facts form a reasonable basis of inference. This rule has been the law for many years where people treasure freedom of speech and resent arguments which would curtail it by granting protection from comment to particular public figures. "So whenever a man calls public attention to his own grievances or those of his class, whether by letter in a newspaper, by speeches at public meetings, or by the publication of pamphlets, he must expect to have his assertions challenged, the existence of his grievances denied, and himself ridiculed and denounced. Odger v. Mortimer, 28 L. T. 472; Koenig v. Ritchie, 3 F. & F. 413; R. v. Veley, 4 F. & F. 1117; O'Donoghue v. Hussey, Ir. R., 5 C. L. 124; Dwyer v. Esmond, 2 L. R. Ir. 243." (Newell on Slander and Libel [4th ed.], p. 545.)

Assuming that we could construe the introduction to express beliefs that the plaintiff by engaging in political activities in company with Communist front organizations thereby was disqualified for employment in radio or television, they are, nevertheless, merely assertions of opinion and not assertions of fact. Sentiments are divided. The four major networks and individual employers obviously did not share such an opinion as they continued to employ the plaintiff. They used their own judgment as to the impact of the plaintiff's political activities and Communist front associations upon his availability as an actor.

The public has a right to know if the public or the people seeking their patronage in a public field are being victimized. (Oma v. Hillman Periodicals, 281 App. Div. 240 [boxer].)

Unless the person is falsely accused of wrongdoing, he or she must accept the criticism or comment. The publisher's right to comment is protected and is not actionable, if reasonable (Hall v. Binghamton Press, 263 App. Div. 403, affd. 296 N.Y. 714, supra [quisling]; Foley v. Press Pub. Co., 226 App. Div. 535 [a "fixer"]).

The public always must be given the opportunity to make its own decision. To this end the right to speak and write freely in regard to public personalities has always been defended as long as the right is exercised openly and reasonably. In this way the public can judge those reporting, as well as those reported. The clandestine work of bigotry and intolerance flourishes when comment is suppressed. Those who seek public acclaim and support cannot expect immunity from criticism or insist that the public remain uninformed regarding their activities. The conduct of public figures is legitimate matter of investigation. Those who demand the right of free speech as necessary to the successful pursuit of their profession, should not seek to deny the same right to their critics. To hold that this book, in the light of the admissions made by the plaintiff, is defamatory, is to expand the law of libel so as to violate the constitutional guarantee of free speech. (U. S. Const., 1st Amdt.; N. Y. Const., art. I, § 8.) We may not by judicial rule so confine and fetter public discussion.

Free speech is not the sole property of special classes of our people, such as radical or liberal dissenters, or opponents of censorship. Every person has the right of free speech, even the moderate, the conservative dissenter and the prude. The plaintiff had the rights of assembly, of petition, and the exercise of free speech in attending a Communist front meeting organized to set in motion measures designed to abolish the House Un-American Activities Committee, and to call for a second front in Europe in October, 1942, after our entry into World War II and while we were under intense attack by the Japanese, although the government's domestic and foreign policies were otherwise. To the same extent his fellow citizens have a right to show who organized the meetings, why in their opinion they organized the meetings, and whether the meetings were part of a plan, and what standing the organizers of the meetings have in the community and whether in their opinion it impaired his qualification for employment in an industry disseminating news and ideas.

The plaintiff insists on an immunity which would enable him to draw a curtain about the influences of his political activities at Communist meetings, while he is permitted to attack in company with the Communist fronts the policies of the government. To assert such a right is to assert a right that the public must remain uninformed regarding activities concerning which the public share divided opinions. When citizens take part in political meetings organized by Communist fronts and giving rise to conflicting opinions among our citizens, they expose themselves to the chance of comment as do all other public figures. The sum of the plaintiff's argument is that comment is actionable if it is directed at any one who, though not a Communist, associates with Communist fronts. Associating with Communist fronts, in other words, coupled with comments thereon, creates a prima facie indefensible case of libel. Such a rule would establish a privileged class of citizen and would be wholly un-American.

Safeguarding and protecting the individual liberty of freedom of speech for all is for the general good, though it may work a private injury. The injury in one's trade or occupation can be equally as severe to a conservative, moderate or prude when attention is called to their activities, as well as to the radical, liberal and opponent of censorship. Comment, if the question is of foreign and domestic policy, is a right to be exercised by all equally. The courts may not construct a shelter from comment for those persons who lend their prestige and presence to groups or persons believed to be working against the national interest. Critical comment is a penalty one must accept whether radical or conservative, liberal or moderate, prude or opponent of censorship, when they involve themselves in political activities.

To characterize the plaintiff's political activities at Communist front meetings as an impediment to employment in radio and television is not to determine his professional fitness for employment; it is mere opinion. We may not resort to fine and shaded distinctions and words may not be pressed out of their ordinary usage to sustain a charge of libel. A libel suit may not be used to intimidate public opinion or restrict freedom of thought. Dissenters may and do lawfully challenge an opponent's right to specific employment. In a country with a population of 160,000,000 people, all citizens have a right to compete for employment in a communications industry where the public is and should be the final arbiter as to the standing of the people who speak to them on radio and appear in their homes. Hence public debate should be encouraged, not stifled. The debate must be on facts secured from revealed sources and identified informers. The criticized must always know who their critics are, and from whom the information was secured.

The statements in the book do not reflect any disparagement of the professional skill or ability of any individual in his trade or business. On the contrary, they leave the impression that the people named are talented and popular in their profession and with the public. Indeed, the argument is made that it is because of that popularity that they wittingly or unwittingly aid the cause of communism. An opinion based on a true report that public figures attended Communist front meetings, and that such acts benefit the Communist cause and are against the national interest, cannot raise a presumption of malice or be found to be wanton or reckless. The admitted conduct of the individuals may be so characterized but not the comment upon it. The comment does not attack anyone's private character. The criticism is of the acts of the individuals. No actual malice can be implied nor has any actual malice been proven. The introduction cautions the reader: "In screening personnel every safeguard must be used to protect innocents and genuine liberals from being unjustly labelled." The comments were based on documentary reports and books. Proof that the reporters are in a profit-making venture is not proof of malice. Newspapers and magazines are profit-making ventures. Comment is not reserved for the wealthy who can afford to subsidize criticism — the poor and middle class have equal rights. In Hoeppner v. Dunkirk Print. Co. (254 N.Y. 95) we ruled that the burden is upon the plaintiff to prove malice. The plaintiff here failed prima facie to prove actual ill will, malice or culpable recklessness or negligence. (Hamilton v. Eno, 81 N.Y. 116, 127; Cherry v. Des Moines Leader, 114 Iowa 298; Gott v. Pulsifer, 122 Mass. 235.)

The precedents suggesting that the questions of fair comment and of malice in some cases are for the jury had a local community factual pattern. They did not embrace within the factual pattern a political ideological subject matter of national and world-wide interest and a person employed in propaganda media with audiences measured in the tens of millions. Such cases are not analogous. In Triggs v. Sun Print. & Pub. Assn. (179 N.Y. 144, 154) the court said: "When a publisher goes beyond the limits of fair criticism, his language passes into the region of libel, and the question whether those limits have been transcended may become a question of law but ordinarily presents a question for the jury".

In that case and in Pecue v. West (233 N.Y. 316), Foley v. Press Pub. Co. (226 App. Div. 535, supra), and Hoeppner v. Dunkirk Print. Co. (254 N.Y. 95, 106, supra), the plaintiffs did not indulge in attacks on the foreign and domestic policy of the government. There the plaintiffs were going about their own affairs seeking no quarrel and the published matter concerned an incident occurring in the usual course of their own way of life. The publishers intruded, not the plaintiffs. The facts here are not ordinary, they are extraordinary. The plaintiff, exercising his right of free speech, thrust himself into a controversy regarding a national and international subject — communism — and a seething national issue — the activities of the House Un-American Activities Committee. By entering in association with Communist fronts, into a debate which was then raging and continues to rage at a national level, involving the judgment of our national House of Representatives, plaintiff, as an actor employed on the radio and television networks, can hardly charge the defenders of the House Un-American Activities Committee and the enemies of Communist fronts with malice or negligence or recklessness or unfair comment, when they object to his admitted conduct in appearing with their opponents and question his fitness for employment on a propaganda media. In this setting we in New York may not throttle free speech and comment in such a way as to determine what the public of the other 47 States and the territories are entitled to know about these controversial subjects. This would effectuate a censorship which would be violative of the fundamental principles of freedom of the press which includes the public's right to be informed of the actions of the opponents and defenders of our government and governmental agencies. Long ago we learned that it is easier to control thought if one begins by controlling the press. It is evident that an ability to exercise control over television and radio free from comment would be even more desirable. We may not permit even a chance of a denial of the right of the public of the United States to know who the critics and the criticized are in a national debate on the uses and abuses of propaganda and propaganda instrumentalities.

Evidence of an admission made by one of the defendants after publication that the book was not perfect in respect to repeating the caution against quick judgments is not enough to create a question of fact as to recklessness or negligence when there is a clear warning, when a plaintiff admits he was present at the Communist front meetings, when the book singles out the members of the Communist party, and when plaintiff concedes the Communists are attempting to infiltrate radio and television.

The plaintiff voluntarily engaged in political controversies in company with Communist fronts on matters affected with a public interest and outside of his trade or business. The comment was on admittedly true, pertinent facts and was a reasonable inference. Any injury occurs not from criticism of the person in his discharge of his employment duties, but from criticism of his actions at Communist front meetings. Such comment cannot be considered personal — the plaintiff put himself in the way of the critics. There was no question of fair comment involved in Mencher v. Chesley (297 N.Y. 94, 101). Since the complaint, and the bills of particulars, and the book prove the statements to be proper comment, even if libelous, the complaint was properly dismissed.

Without passing on the defense of fair comment, the trial court and the Appellate Division have found that the book is not libelous. They held that the charge of the plaintiff that the book is defamatory in that it exposed him to contempt and aversion and touched him in the way of his office or trade, is unsubstantiated. To date six Justices of the Supreme Court of this State have read the book carefully and have decided that there was no defamatory matter published of and concerning the plaintiff. The court below applied the rule in Hays v. American Defense Soc. (252 N.Y. 266, 274-276). In that suit, in dismissing the complaint, we said:

"the charge made in the pamphlet is no more than that certain of the directors of the organization to which he belongs and of other organizations are Reds or Radicals. It further charges that certain of the persons interested in these various organizations are adepts and certain are dupes, and that the dupes are being used by being placed actively to work furthering some idea which if put into practice would contribute to the general purpose of the Communists. This is far from charging the plaintiff specifically with being an adept or a dupe." (Italics added.) "No one, from a reading of the article, would be justified in saying that it charges that the plaintiff is a radical, a Red, engaged in an attempt to overthrow the government, or in any conduct which holds him up to scorn or ridicule. The allegations of the complaint which so charge are limited by the article itself, which is made a part of the complaint. It contains no language which constitutes a libel against the plaintiff."

It is for the court to decide whether a publication is capable of the meaning ascribed to it. The "court shirks its duty if it creates an issue, when none exists" (Crane v. New York World Tel. Corp., 308 N.Y. 470, 479-480). The book must be read as a whole. The words and phrases must be construed together with their context. (Seelman, Law of Libel and Slander in New York, par. 160, p. 138.) The interpretation placed by plaintiff upon the title and statements in the introduction is unwarranted. Judge GRAY in Crashley v. Press Pub. Co. (179 N.Y. 27, 34) said: "I do not think that to attach his name to the coterie, which surrounded him, was to impute to him their personal defects, or moral turpitude." In this case the courts below reached the same conclusion.

The rules in More v. Bennett (48 N.Y. 472, 476), Sidney v. Macfadden Newspaper Pub. Corp. (242 N.Y. 208), and Cafferty v. Southern Tier Pub. Co. (226 N.Y. 87, 622) were framed to aid in determining whether or not published statements were libelous, not to assist in determining whether a statement applies to the individual. In those cases it was clear that the writings were published of and concerning the plaintiffs. The use of such authorities by a process of extrapolation is not permissible here as the primary issue in this case is entirely different. We must first determine whether the alleged libelous matter was published of or concerning the plaintiff.

In the Hays case (252 N.Y. 266, supra) this court laid down the rule as to fair reading in order to determine whether the writings applied to a plaintiff.

The defendants published a pamphlet entitled "LaFollette-Socialism-Communism". The Appellate Division speaking of the introduction said: "It stated in substance that the Communists claim that the realization of socialism is the first step toward a Communist commonwealth; that the Workers Party of America was operating in sympathy with Communist organizations teaching the destruction of government, and was for that purpose advocating the election of those holding socialistic views. The pamphlet continues to emphasize the general trend of all so-called liberal movements to absolute revolutionary anarchism, to strikes, rioting, violence, sabotage, etc. The pamphlet states that `the destructive radicals launched into the political life of the country with a greater determination than ever before to effect the overthrow of the United States Government by force and violence, as demanded by the Communist leaders of Soviet Russia.' It continues: `This movement, the leaders of which will have no part in any attempt at reform, but insist upon destruction, is constantly attaining greater and more menacing strength through a system of interlocking directorates whereby a comparatively small number of individuals are able to shape the policies of various organizations and quickly or gradually turn them to the advantage of the world revolutionists.' The pamphlet then mentions certain groups of affiliated organizations `which clearly understand the line of march on which they are moving deliberately toward world revolution.' It refers again to the system of interlocking directorates of these organizations. It announces that `the best way to discover "useful workers" and "skilled leadership" in the well-articulated associations, societies and leagues which relate themselves to revolutionaries indirectly by interest in similar activities is to observe the cross-beam directorates. (See chart of directorates.)'" (224 App. Div. 588, 589.)

The pamphlet contained an "Index to Directorates" in which plaintiff's name was listed and an "Index to Organizations" in which the organizations to which plaintiff belonged were listed.

This court decided that a fair and careful reading would be required. We ruled that, in order to state a cause of action, the alleged libelous article must refer to the plaintiff and concluded that, if it found that the alleged libel was not of and concerning plaintiff, the complaint should be dismissed. The court found, as here, that nowhere in haec verba was plaintiff called a member of the Communist party, or a Red, or a criminal, or engaged in a movement to overthrow the government, or any of "the things set forth in the innuendo". The court noted that, on the other hand, the pamphlet made clear that: "`Beyond question many of the members of the organizations shackled by the interlocking directorates have no appreciation of their destination. Many of the organizations were doubtless founded by people actuated by feeling a real need for improved conditions or by humanitarian impulses.' It does not state whether the plaintiff is a person `actuated by feeling a real need for improved conditions or by humanitarian impulses' or otherwise."

The court then ruled upon the precise issue involved in the instant case. We assumed that plaintiff was a director of the organizations to which he admitted he belonged. Yet we held that plaintiff was not libeled. This case and the Hays case (supra) are indistinguishable. The purpose of both books was to prevent the growth of radical doctrines in this country. In the present publication there is exculpatory material and warnings against misjudging the people listed. In that respect the authors here showed greater care than the authors of the LaFollette pamphlet.

It is essential in making out a prima facie case in libel to prove that the matter is published of and concerning the plaintiff. The book itself fails to reveal any connection between any of the alleged defamatory matter and the plaintiff. The claim that the title "Red Channels" applies to the plaintiff raises no triable issue, because it is clear that the title refers solely to organizations and devices for the spreading of Communist propaganda and not to individuals.

The listing of attendance of Julian at only two meetings widely separated, the first in 1942 and the second in 1949, in itself does not support the plaintiff's charge that it was the intention of the book to cast him as a "sympathizer", "dupe", "tool" or "sucker", "colonist" or other so-called objectionable terms. His participation at Communist front meetings fell far short of that activity necessary to be classified as a "sympathizer", "dupe", "tool", "sucker" or "fellow-traveler". The terms "dupe", "sucker", "sympathizer", "tool" or "fellow-traveler" and other so-called objectionable terms as used in this book clearly connote a regular and continuous use of the presence and talents of an individual. The references to plaintiff, when read together with the introduction and purpose statement of Part II, are not susceptible of a libelous interpretation. The statements are clear and unambiguous and consequently cannot be enlarged upon or changed from the sense in which they were used.

The plaintiff, who has the affirmative burden of proving the alleged libelous material was published of and concerning him, would have us relieve him of the burden without evidence.

To so rule would be the equivalent of establishing the doctrine that proof may be dispensed with in certain libel suits, and a trial rendered unnecessary by requiring a submission of all publications to juries to determine all issues.

We declared in Moore v. Francis (121 N.Y. 199, 202-203): "It is the settled law of this state that in a civil action for libel, where the publication is admitted and the words are unambiguous and admit of but one sense, the question of libel or no libel is one of law which the court must decide. (Snyder v. Andrews, 6 Barb. 43; Matthews v. Beach, 5 Sandf. 256; Hunt v. Bennett, 19 N.Y. 173; Lewis v. Chapman, 16 id. 369; Kingsbury v. Bradstreet Co., 116 id. 211.)"

The indispensable proof is lacking. The alleged libelous material upon a fair reading and evaluation has not been shown to have been published of and concerning the plaintiff and consequently the complaint was properly dismissed, as the complaint did not state a cause of action (Corr v. Sun Print. & Pub. Assn., 177 N.Y. 131; Hays v. American Defense Soc., 252 N.Y. 266, supra).

Mencher v. Chesley (297 N.Y. 94, supra) is inapposite. There the prime question for decision was whether it was libelous to characterize one as a Communist or Communist sympathizer when it was proven that the statements "former Daily Worker employee", "campaign manager for * * * Communist candidate" were directly published of and concerning the plaintiff. In the cases cited in the dissenting opinion the defamatory matter was shown to be directly published of and concerning the plaintiffs. (Brown v. Tregoe, 236 N.Y. 497 [creditman]; Moore v. Francis, 121 N.Y. 199, supra [a bank teller]; Hoeppner v. Dunkirk Print. Co., 254 N.Y. 95, supra [football coach]; Krug v. Pitass, 162 N.Y. 154 [doctor]; Kleeberg v. Sipser, 265 N.Y. 87 [attorney]; Ben-Oliel v. Press Pub. Co., 251 N.Y. 250 [lecturer]; Bornmann v. Star Co., 174 N.Y. 212 [doctor].)

In all those cases the defamatory matter and the plaintiffs were linked together by a chain of unchallenged proof. For this reason they cannot be adverted to as precedents.

Having determined after a reading of the book that nothing defamatory was published of or concerning the plaintiff, it is unnecessary to discuss at length the evidence extrinsic to the book offered by the plaintiff under the authority of Bishop v. New York Times Co. (233 N.Y. 446, 451, 454) to show that he was avoided and shunned by former friends and acquaintances "as the direct and well-connected result of the libel." Such evidence is admissible only to support the "presumption of injury to reputation and mental distress" and as "tending * * * to prove such consequences". Without proof that a libel was published of and concerning plaintiff, there is no presumption of damages.

The evidence offered by the plaintiff is more than inconclusive, it is contradictory of and renders nugatory the averment in the complaint that he was shunned and avoided which plaintiff attempted to prove though not required by any rule of law.

The testimony of a producer-director that "We quarantine everybody in the book. We cannot take any chances" was recanted and was contradicted by the testimony of the plaintiff and the testimony of other witnesses for the plaintiff. The testimony shows that the plaintiff's reputation as an actor at the time of the trial was "good". Three witnesses admitted they could not say he had been shunned or avoided. One of his employers testified that he hired the plaintiff on two separate occasions after the publication of the book. The plaintiff testified he was retained on a radio show after the employer had read the book. After the publication of the book, plaintiff appeared on four television programs as against two programs prior to its publication. In 1950, 1951, 1952, 1953 and 1954, the plaintiff appeared on all four major networks. Moreover, a number of the actors, actresses and writers listed in the book then were, continued to be and are nationally and internationally known and well employed.

The direct questions put to a witness, Francis, having been objected to, were improper, and the answers inadmissible as they sought the witness' opinion that the publication attacked the plaintiff (Van Vechten v. Hopkins, 5 Johns. 211, 225, 226). The testimony of Francis, who admitted he had not carefully read the book, did not in any way tend "to prove plaintiff had been shunned and avoided by former friends and acquaintances as the direct well-connected result of the libel". It did not meet the standards laid down in the Bishop case (233 N.Y. 446, supra). Linehan v. Nelson (197 N.Y. 482) cannot be relied upon by the plaintiff as an authority to support the argument that the testimony of his own witness that he was unharmed may not be considered because the plaintiff here did not take appropriate objections at the trial so as to preserve the question for appeal. Furthermore, such responses were made to questions propounded by the attorney for the plaintiff on the direct examination.

We find the criticism, based upon public policy, is fair and honest, promoted the public good and enabled the people to form an estimate of the critics as well as the criticized.

The determination of the Appellate Division and the trial court, unanimously pronounced, after a reading of the publication, that nothing defamatory was published of and concerning the plaintiff, should be affirmed.

FULD, J. (dissenting).

No one may dispute or question the high necessity and great value of a publication alerting the public or an industry to the menace of Communism, or any other situation considered dangerous, and suggesting the means and method to combat it. The constitutional guarantee of free speech assures to defendants their right to speak out against such a danger, but, as the Constitution of this State explicitly declares (art. I, § 8), they are "responsible for the abuse of that right". (See, also, Robertson v. Baldwin, 165 U.S. 275, 281.) The existence of danger does not, of course, suspend the law of libel. Indeed, as Professor Edmond Cahn has phrased it, "civil remedies for defamation * * * were considered by the founding libertarians as virtually essential to the maintenance of free speech and press." (Cahn, The Firstness of the First Amendment, 65 Yale L. J. 464, 476; see, also, 5 The Writings of Thomas Jefferson [1895], p. 112.)

As we read the challenged booklet, "Red Channels," and review the evidence, the conclusion is to our minds inescapable that the basic issues here presented — whether the published matter was defamatory of plaintiff and whether it was privileged as "fair comment" — are questions of fact for determination by a jury and may not be summarily disposed of by the court's dismissal of the complaint.

Red Channels is a paper-backed booklet of some 200 pages, issued in June of 1950 by the publishers of "Counterattack," a weekly "Newsletter of Facts to Combat Communism". The text of the booklet is divided into three sections: an Introduction (pp. 1-7), an "Alphabetical Index of Names" (pp. 9-160) and an "Alphabetical Index of Organizations" (pp. 161-213). The introduction warns of the dangers of Communism and of the design of Communists to achieve control of the radio and television industry in order to further their purposes and facilitate their eventual seizure of the entire country. In analyzing the Communists' strategy, the publication states that the number of actual party members in the industry is small, but that they pursue their goals by utilizing a great many "dupes or innocents" who, for one reason or another, support "the Party line" (p. 2). These periphery workers are variously described as "Communist sympathizers," "fellow travelers," "reliables," "dupes," "transmission belts" and "colonists;" and the text emphasizes their importance to the party, even though they may "advance Communist objectives with complete unconsciousness" (p. 6). The final section of the introduction, headed "The Counterattack," admonishes the industry that Communists and Communist sympathizers have no place on the air and compares them to "the Lord Haw Haws, the Axis Sallys, and the Tokyo Roses" (p. 6).

The two lists then follow. The first names 151 individuals and notes their activities in various organizations and in public affairs. The second, a catalogue of the organizations themselves, is headed by a note that, unless otherwise indicated, they are cited in a document prepared by the House Un-American Activities Committee as organizations found to be "Communist or Communist Fronts".

Plaintiff's name is contained in the first list; described as an "Actor-Radio," he is reported as (1) having been a "Speaker" at a 1942 meeting of an organization cited by the House Un-American Activities Committee and (2) having attended a meeting in 1949 of an organization which urged the abolition of the House Un-American Activities Committee.

Plaintiff does not deny that he attended those two meetings. The gravamen of the complaint is that this listing, when read in conjunction with the title and introduction, was intended and calculated to convey to the public that plaintiff "was and is connected with the Communist Party, either as a `Communist,' `dupe,' `tool,' `sucker,' `colonist,'" etc.; and that "he was and is sympathetic to the cause of Communism", exerting "his influence in radio or television by promoting pro-Soviet, pro-Communist, anti-American" propaganda. Maintaining that defendants acted "maliciously" in publishing the statement concerning him, plaintiff denies that he is or ever was a Communist, Communist sympathizer or any of the other things mentioned and asserts that the published matter was false, that it held him up to public ridicule and contempt, hurt his standing in the community and impaired his opportunities to obtain employment in his chosen field.

Plaintiff's evidence established that, from 1947 until the publication of the booklet in 1950, his earnings averaged about $17,000 each year, and that they fell thereafter to $11,878 in 1951, to $6,710 in 1952 and to $1,630 in 1953. He was anti-Communist, he testified, had played the leading role in an anti-Communist radio play in 1948 and had never, to his knowledge, been associated in any way with Communism or any Communist front. The 1942 meeting that he attended was called to urge the opening of a second front in Europe and his participation consisted of reciting a roll call, in verse, of "various artists who died in the struggle against Fascism." He attended the 1949 meeting, he stated, "largely out of curiosity," and also because he was opposed to the House Un-American Activities Committee and its practices.

One witness, an actor, testified that he and others in the industry had shunned and avoided plaintiff as a result of the inclusion of his name in Red Channels. He had not, he asserted on cross-examination, read the book carefully, but, "like all [his] friends," he had "jumped to the conclusion" that plaintiff was a Communist solely because he was listed. And a producer for the Columbia Broadcasting System stated that there was a "widespread" custom in the radio and television industry not to hire anyone listed in Red Channels, explaining that "We quarantine everybody in the book. We cannot take any chances." On the other hand, several witnesses, when asked by the trial court whether plaintiff "has been avoided and shunned by former friends and acquaintances" as a "direct" result of being listed in Red Channels, gave inconclusive answers. One stated, "Not of my own knowledge", another had "no knowledge that that has happened" and a third declared, "I could not say that of my own personal knowledge * * * because I don't have that close a contact."

It is defendants' principal contention that nothing defamatory has been published "of and concerning" plaintiff. They maintain that the only reference to him is in the Index and that he concedes the substantial truth of the statements about his participation in the two meetings. They acknowledge that the introduction warns of the "fellow travelers," "dupes" and "reliables," who are advancing Communist aims, and that its message is that they should be kept off the air. But, they urge, it does not specify which, if any, of the individuals listed come within these categories and, indeed, cautions that some "advance Communist objectives with complete unconsciousness". Therefore, the argument concludes, since the booklet affords no indication whether or not plaintiff is in one of the objectionable classes, the alleged defamatory matter cannot be applied to him.

In making these arguments, however, defendants overlook cardinal principles in the law of libel. They ignore the rule that the publication must be considered as a whole, that its meaning depends, not upon isolated and detached statements, but upon "`the whole scope and apparent object of the writer.'" (More v. Bennett, 48 N.Y. 472, 476; see McKee v. Robert, 197 App. Div. 842, 847; see, also, Seelman, Law of Libel in New York, par. 160, p. 138.) They also ignore, what is of equal significance, that "the courts will not strain to interpret [the words used] in their mildest and most inoffensive sense to hold them nonlibelous." (Mencher v. Chesley, 297 N.Y. 94, 99.) The writing must be "read against the background of its issuance, under the circumstances of its publication" (Mencher v. Chesley, supra, 297 N.Y. 94, 99) and construed, not with the high degree of precision expected of and used by lawyers and judges, but as it would be read and understood by an ordinary member of the public to whom it is directed. (See, e.g., Sydney v. Macfadden Newspaper Pub. Corp., 242 N.Y. 208, 214; Cafferty v. Southern Tier Pub. Co., 226 N.Y. 87, 93; see, also, Seelman, op. cit., pars. 162-164, pp. 139-142; Prosser on Torts [2d ed., 1955], § 92, pp. 580-581.)

With these principles in mind, let us examine Red Channels. Its "whole scope and apparent object" (More v. Bennett, supra, 48 N.Y. 472, 476) was to call the attention of the radio and television industry to the dangers of Communist infiltration and to recommend as a "Counterattack" that work be refused to those performers who might promote and further that cause. Self-styled "The Report of Communist Influence in Radio and Television", its cover luridly emblazoned with a large red hand about to cover and smother a microphone, the booklet warns that the Communist scheme is being advanced by a great many people within the ranks of the entertainment field. It describes in considerable detail how the Communist sympathizers, the Communist dupes, colonists and tools aid the Communists by mouthing the party line, by linking their names or contributing money to front organizations or — remarking an activity which has particular reference to plaintiff — by lending their "great prestige and crowd-gathering power * * * as performers or speakers at front meetings and rallies" (p. 1). And it urges and advises, as a "Counterattack," that the danger of eventual Communist domination of the industry should "guide broadcasting management in the screening of personnel" (p. 6).

Then, in what constitutes the major portion of the book, it lists performers who have become members or sponsors of front organizations, or participated in their rallies, who have, in short, engaged in the very activities cited as abetting the Communist program of infiltration and domination. This list appears to be the prime reason for the booklet's existence, and it is certainly a reasonable inference for the "fair reader" that these are the "sympathizers," the "dupes" and the "tools", that these are the people who must be kept off the air, blacklisted and quarantined, if the Communist plan is to be disrupted, its goal frustrated. That this was in fact the understanding of broadcast management is a matter of evidence in the record before us.

The mere statement in the introduction that, "In screening personnel, every safeguard must be used to protect innocents and genuine liberals", cannot shield defendants from liability if the booklet is otherwise libelous. Actually, it is unclear whether this note of caution was meant to apply to the persons listed or only to other personnel. But, even if it clearly embraced those named, it would not serve, per se, to insulate defendants from liability. The publisher of an otherwise libelous report obviously cannot escape liability by so simple and obvious a subterfuge, and so we have already, and clearly, held in Brown v. Tregoe (236 N.Y. 497).1

As reason and decision make plain, a publisher may not brand his victim with suspicion and then avoid liability by attempting to foist upon the reader the burden and responsibility of ascertaining whether or not there is anything to the charge. Human nature being what it is, and time usually at a premium in this machine age of ours, a writer or publisher may reasonably expect a reader to act upon the suspicion rather than to undertake an independent investigation of his own. Indeed, as a producer for one large network testified, the industry adopted the policy of "quarantining" everyone listed in Red Channels and followed the practice of not hiring any of them. Even if defendants did not intend this precise consequence, the law holds them responsible for "the natural and proximate result of their act"; they may not "escape liability by * * * indirectly charging that which would be slanderous, if imputed in direct and undisguised language." (Sanderson v. Caldwell, 45 N.Y. 398, 401, 404; see, also, Spiegel, Defamation by Implication — in the Confidential Manner, 29 So. Cal. L. R. 306.)

If, as argued, there was a question as to the accuracy of the witnesses' appraisal of the book's impact, it was at least a matter for the jury's consideration and determination.

Nor may it be held that the publication was rendered non-actionable as a matter of law by the insertion of scattered statements in the introduction and the headnote to the Index, that some performers who engaged in the activities mentioned may not "actually believe in, sympathize with, or even recognize the cause advanced", and may really be "innocents" or "genuine liberals". Where, as here, the general tenor of the publication is such that it may be fairly read as casting a high degree of suspicion on every one of the persons listed, the mere suggestion that "some" of those named may not fall within the objectionable category cannot suffice, per se, to shield defendants from liability. (See, e.g., Kirkman v. Westchester Newspapers, 287 N.Y. 373, 379, 385; Neiman-Marcus v. Lait, 13 F. R. D. 311, 315; see, also, Restatement, Torts, § 564, Comment c, illus. 2; Horowitz, Legal Aspects of "Political Black Listing" in the Entertainment Industry, 29 So. Cal. L. R. 263, 283-285.) Moreover, it cannot be assumed that the laymen of the broadcasting industry who read the booklet would underscore these scattered statements, as we have done, and consider their relative weight and import. It is settled that such "detached statements cannot be set aside to destroy the connection of the whole" (McKee v. Robert, supra, 197 App. Div. 842, 847) and that "an undue emphasis may be given a part of the publication," such as the title, cover and most of the introduction of Red Channels, which less prominently placed qualifying statements cannot remedy. (Prosser, op. cit., § 92, p. 581; see, also, Shubert v. Variety, Inc., 221 App. Div. 856, affg. 128 Misc. 428; Newell on Slander and Libel [3d ed., 1914], § 368, p. 378.)

Furthermore, there is nothing in the booklet to indicate that a performer who assists and advances the Communist cause unknowingly, without recognizing that he is doing so, merits any better industry treatment than one who is actually a member of the Communist party, knowingly and deliberately participating in its program and purposefully furthering its aims. Thus, the authors expressly assert that "The `colonists' need not be party members or even deliberate cooperators. It is sufficient if they advance Communist objectives with complete unconsciousness." It is plain from what defendants have written in the introduction that it is the activity — mouthing Communist propaganda, lending prestige to the Communist cause or to front organizations — that is charged with assisting the Communists and thereby endangering the industry. Whether such activity is engaged in consciously or not obviously makes no difference, and the fact that the participation is unwitting would not lessen its impact on radio producers. The charge still remains that the particular performer, regardless of intent or motive, furthers the Communist plan by words and actions and, therefore, must be stilled, must be "quarantined and" removed from the roster of employable artists.

Defendants assume that a charge so qualified is not defamatory. But considering "the temper of the times" and the "current of contemporary public opinion" (Mencher v. Chesley, supra, 297 N.Y. 94, 100), the ignorance, the gullibility, the lack of common care or good sense involved in being inveigled into serving the Communists and their cause, even unwittingly, might reasonably be said to hold the victim up to public shame, scorn and ridicule. (Cf. Spanel v. Pegler, 160 F.2d 619; Grant v. Reader's Digest Assn., 151 F.2d 733, 735.)

Quite apart from all this, however, the particular circumstances of this case bring into play a much stricter standard of liability. The charge here in question was made of a radio and television performer in a booklet directed to management to be used as a guide in screening personnel. It was made as a judgment on his fitness for employment, for the message of the booklet is that performers who assist the Communist cause have no place on the air. Under such conditions, it is of no moment that the charge may exonerate him of any conscious fault; the law renders the words actionable, as calculated to impair his ability to earn a livelihood, though it contain not the slightest imputation against his honesty, his motives or his character. (See, e.g., Kleeberg v. Sipser, 265 N.Y. 87, 91-92; Braun v. Armour & Co., 254 N.Y. 514; Hoeppner v. Dunkirk Print. Co., 254 N.Y. 95, 105-106; Ben-Oliel v. Press Pub. Co., 251 N.Y. 250, 255-256; Brown v. Tregoe, supra, 236 N.Y. 497; Bornmann v. Star Co., 174 N.Y. 212, 219; Krug v. Pitass, 162 N.Y. 154, 159-160; Moore v. Francis, 121 N.Y. 199; see, also, Prosser, op. cit., § 93, p. 590; Seelman, op. cit., pars. 19-21, pp. 8-13.)

It is sufficient, this court decided in Moore v. Francis (supra, 121 N.Y. 199, 205), if the words impute to him any "incapacity, unfitness or want of any necessary qualification" in the exercise of his profession, trade or business. In the Moore case (supra, 121 N.Y. 199), the accusation was that the plaintiff, a bank teller, had become mentally deranged from overwork, and had made injurious statements which caused a run on the bank. The court, after stating the general rule quoted above, found the charge actionable as tending to harm him in his occupation as a bank teller: "The publication now in question * * * imputed mental derangement while engaged in his business as teller, which affected him in the discharge of his duties. The words conveyed no imputation upon the plaintiff's honesty, fidelity or general capacity. * * * While the statement was calculated to excite sympathy, and even respect for the plaintiff, it nevertheless was calculated also to injure him in his character and employment as a teller" (p. 206).

Similarly, in this case, the charge that plaintiff was a "dupe" or "colonist" of the Communists was written in relation to his profession as a radio and television actor. It imputed the want of a "necessary qualification in the exercise thereof", for the book's entire thesis is that such peripheral Communist workers should not be employed because they undermine and prostitute American broadcasting and pave the way for eventual Communist seizure of that industry. Defendants, in other words, expressly connected the charge with plaintiff's trade and occupation; they themselves made it a necessary qualification in the exercise thereof. And, as demonstrated above, the publication is not rendered any less libelous by the suggestion that plaintiff may have been innocently inveigled into advancing Communist objectives "with complete unconsciousness." To cull from the opinion in the Moore case (supra, 121 N. Y., at p. 206), although the statement may have "conveyed no imputation upon the plaintiff's honesty, fidelity or general capacity", it was, nevertheless, "calculated * * * to injure him in his character and employment" as a radio and television entertainer.

Our decision in Hays v. American Defense Soc. (252 N.Y. 266) is not here apposite. That case concerned a pamphlet, entitled "LaFollette — Socialism — Communism", which was solely political in its purpose, namely, to defeat LaFollette in his candidacy for president and to stimulate "an active interest in combatting the growth of radicalism in this country" (p. 270). The text described three classes of organizations: first, the Communists, "who are endeavoring to overthrow the government by force"; second, a group of named organizations which "clearly understand * * * that their purpose and activities are in aid of the Communist party"; and, third, two organizations, to all appearances "perfectly legitimate," which assisted the second group by means of "interlocking directorates" (pp. 270-271, 276). Plaintiff's name was nowhere mentioned in the text of the pamphlet; it appeared only in a list of 396 names contained in an index in the back of the pamphlet, with symbols indicating that he was a person "connected with" the two organizations of the third group. He was not, however, identified with any of the organizations in the first two groups. As respects the organizations with which he was affiliated, the pamphlet did charge that "certain" of the directors of those organizations were "Reds or Radicals" and that "certain" of the persons interested therein were "adepts" or "dupes" of the Communists (p. 274). We held that the pamphlet could not be read as charging that all of the directors or members of the organizations with which plaintiff was associated were "Reds or Radicals" or "adepts" or "dupes", and that, accordingly, there was no basis for the claim that the defamatory statements in the pamphlet were made "of and concerning" the plaintiff.

In the case before us, however, a jury could reasonably find that the publication charged, or at least generated a high degree of suspicion, that everyone of those named was an "adept" or a "dupe", aiding and abetting the Communist cause. Moreover, the pamphlet in the Hays case was, first and last, a political tract, the list of names being but incidental, entirely different from the purpose of the list in Red Channels. As already noted, the latter booklet is a report to the broadcasting industry on the fitness for employment of the persons listed, and the list, along with the advice that those who aid or abet the Communists should be refused employment, was the principal reason for its issuance. In such circumstances, the statements purporting to exculpate some of those listed as unknowing or unwitting participants are irrelevant to its defamatory nature, for the charge that plaintiff advances the Communist cause, whether knowingly or not, is in itself actionable as defaming and disparaging him in his trade or profession.

It is our conclusion, therefore, that a fair question was presented for the jury as to whether Red Channels charges plaintiff, as is alleged in the complaint, with being a "dupe," "colonist," "transmission belt," of the Communist cause, "exerting * * * his influence in radio or television by promoting pro-Soviet, pro-Communist, anti-American" propaganda. Whether or not that charge is true, is a matter for defense, not to be decided on a motion to dismiss the complaint.

Nor can we agree, as the trial court ruled, that the evidence conclusively established that plaintiff was in no way injured. Again, the question was, at best, one of fact for determination by a jury, and could not be summarily disposed of as a matter of law by the court. On a motion to dismiss, the facts must "be considered in the aspect most favorable" to the plaintiff, who is "entitled to the benefit of every favorable inference which can reasonably be drawn from those facts." (Sagorsky v. Malyon, 307 N.Y. 584, 586.) The publication itself and the evidence, particularly the undisputed showing of the drastic decrease in plaintiff's earnings and the testimony that he was shunned and avoided and refused jobs because of the industry's widespread practice of not hiring anyone listed in Red Channels, were certainly ample to create an issue of fact for the jury.2 In any event, proof of lack of injury furnishes no ground for dismissing a libel action, in view of the fundamental principle that the existence of some damage, at least nominal damage, is always presumed from the publication of the libel itself. (See, e.g., Abell v. Cornwall Ind. Corp., 241 N.Y. 327, 335; Moore v. Francis, supra, 121 N.Y. 199, 204; Sanderson v. Caldwell, supra, 45 N.Y. 398, 403; see, also, Seelman, op. cit., pars. 332, 337-339, pp. 323-324, 326; Prosser, op. cit., § 93, p. 587.)

There remains for consideration defendants' reliance on the qualified privilege of fair comment, as an alternative ground for dismissal of the complaint.

The privilege is recognized of commenting on matters of public interest and concern, provided that (1) the published statement is a matter of "comment or opinion" rather than the assertion of a factual proposition, (2) it is based on facts truly stated, (3) it is a fair and reasonable inference from those facts and (4) it is made without actual malice, by which is meant "personal spite or ill will, or culpable recklessness or negligence." (Hoeppner v. Dunkirk Print. Co., supra, 254 N.Y. 95, 106; see, also, Briarcliff Lodge Hotel v. Citizen Sentinel Publishers, 260 N.Y. 106, 118-119; Triggs v. Sun Print. & Pub. Assn., 179 N.Y. 144, 154-155; Foley v. Press Pub. Co., 226 App. Div. 535; Seelman, op. cit., § 246, pp. 233-235.) Perhaps, in a rare and exceptional case, the defense of fair comment may be established as a matter of law, but it is settled that, if any question is raised as to whether the published statement is one of fact rather than an expression of opinion, or whether, if opinion, it is fairly warranted by the facts truly stated or whether the defendant has otherwise gone beyond the bounds of fair comment, the matter must be submitted to the jury. (See Triggs v. Sun Print. & Pub. Assn., supra, 179 N.Y. 144, 154; Foley v. Press Pub. Co., supra, 226 App. Div. 535, 546; Aga Khan v. Times Pub. Co., L. R. [1924] 1 K. B. 675, 680; Gatley on Libel and Slander [4th ed., 1953], p. 369; Odgers on Libel and Slander [5th ed., 1911], pp. 218-220.)

In the present case, it certainly may not be held that the defense of fair comment has been made out as a matter of law. In the first place, the whole tenor of the booklet, its plain implication, is that of a factual report compiled by a research bureau whose business it is to make such reports. Everything that is said, both in the introduction and in the body of the work, is fully documented, little being asserted in the form of opinion or comment. And, even if the statements were deemed "comment," a substantial question is presented as to whether it is "fair", that is, whether it could be fairly inferred, from plaintiff's participation in the two meetings cited under his name, that he is a "sympathizer" or a "tool" or a "dupe" of the Communists, and a threat to American broadcasting. There is also the further question, for the jury, whether defendants have gone beyond the area of fair comment to launch a personal attack upon plaintiff. (See Triggs v. Sun Print. & Pub. Assn., supra, 179 N.Y. 144, 154, 156.)

The evidence, in addition, raises a question of fact as to whether defendants were guilty of such recklessness, the equivalent of actual malice, in making the defamatory statements concerning the plaintiff, as to preclude invocation of the privilege of fair comment. (See Hoeppner v. Dunkirk Print. Co., supra, 254 N.Y. 95, 106; Pecue v. West, 233 N.Y. 316, 322.) Thus, one witness, a free lance writer, who interviewed defendants for the purpose of writing an article about Red Channels, testified that defendant Bierly told him that two mistakes had been made in publishing Red Channels: "We did not", he is quoted as saying, "check up on the accuracy of the so-called facts before they were published"; and they "didn't grade" the people or "indicate [which] was a Communist, a dupe or an innocent." And, the witness added, Bierly stated that, "as a consequence, a person reading it would look at it and say, — whether by bias or ignorance or whatever — `Oh, oh, that guy must be a Commy'".

Therein lies the potential for harm which inheres in defendants' publication. Just as had individuals in the industry, so may a jury reasonably find that the booklet, considered as a whole, charges plaintiff with being a Communist sympathizer, a Communist tool or a Communist dupe, and, by reason thereof, defames and disparages him in his business and profession. Defendants are, of course, free to show, if they can, that plaintiff was in truth and fact a Communist sympathizer, tool or dupe, and, if the jury were so to find, there would be no liability. Or, if the jury were to determine that what defendants said of plaintiff constituted not a statement of fact but an opinion, and that that opinion was honestly expressed and was a permissible deduction and inference from the facts truly stated, the defense of fair comment would be established and, again there would be no liability. However, as already demonstrated, doubtful questions of fact are presented and the complaint should not have been dismissed. Just as a court may not shirk its duty by creating an issue, "when none exists", so, we have declared, a court violates first principles if, as here, it disregards an issue and thereby deprives a plaintiff of a trial by jury. (Crane v. New York World Tel. Corp., 308 N.Y. 470, 479-480.)

The judgments should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.

FootNotes


1. The World Almanac, 1956, p. 790.
1. The Brown case (supra, 236 N.Y. 497) involved a charge couched in language very similar to that used here. Defendants, a credit and collection agency, published a report concerning plaintiff, a competitor in the same business, which stated that "The information derived by our investigator * * * indicated" that his [plaintiff's] former employer was "very critical," and "tended also to criticize [his] paying qualities" and suggested that he had been guilty of "ungentlemanly practices". It cautioned not only that this "was merely information coming into the hands of our investigator, and we have no means at all of verifying or disapproving it," but also that, "In our judgment * * * prospective users of [plaintiff's] agency should satisfy themselves thoroughly as to its abilities and the character of the men back of it." Despite this statement, the court explicitly concluded that "a jury at least would be permitted to say" that the report accused plaintiff of poor "paying qualities" and other faults, which "undoubtedly would impair his standing and character in his business" (236 N.Y. 497, 501, 502).
2. In point of fact, testimony designed to show that a witness believed that plaintiff's reputation was not injured should not have been admitted. (See Linehan v. Nelson, 197 N.Y. 482; Maynard v. Beardsley, 7 Wend. 560, 568-569, affg. 4 Wend. 336, 359; Van Vechten v. Hopkins, 5 Johns. 211, 225-226; see, also, Seelman, op. cit., par. 565, p. 485; par. 573, p. 488.) Reliance on Bishop v. New York Times Co. (233 N.Y. 446) for its receipt is misplaced. In the Bishop case, the court held that the plaintiff may support "the presumption of injury to reputation and mental distress" by introducing "evidence tending actually to prove such consequences" (pp. 453-454). It has no bearing, however, on the question whether testimony to the contrary — that is, testimony that the witness believes plaintiff's reputation unharmed — is admissible. On that question, we expressly held in Linehan v. Nelson (supra, 197 N.Y. 482) that a defendant may not ask plaintiff's witnesses upon cross-examination "whether the * * * [publication] had injured the reputation of the plaintiff in the estimation of the witness" (p. 484). It would, the court observed, introduce "a new element of speculation and uncertainty" and might lead to the defeat of a libel action simply because the plaintiff was too highly regarded to suffer any loss of esteem or the defendant too poorly regarded for his accusation to be believed (pp. 485-486).

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