This is an action for slander. The parties are well-known public figures. The plaintiff, Dr. E. Leonard Cheatum, is a nationally recognized authority on wild life and conservation. He has made it his life career, serving in course of time as a teacher, writer and organizer, and has held public positions in that field in the conservation departments of the United States in several States of the Union and at the time in question was and for some time prior thereto had been a civil service employee in the New York State Conservation Department.
The defendant, Louis A. Wehle, a successful business man, has interested himself in wild life conservation. It has been for him an absorbing hobby, leading to the operation of a licensed game farm in connection with his extensive land holdings and the sponsorship of the widely advertised and popular "Louis A. Wehle Fishing Contest" and "Louis A. Wehle Conservation Contest", which carry with them substantial cash prizes for winners in various and assorted categories of fishing and hunting. In this connection, he also published and widely distributed complimentary copies of a booklet known as the "New York State Fishing Guide", its authorship being credited to him as chairman of the board of the Genesee Brewing Company.
On January 1, 1955 Governor Harriman appointed Mr. Wehle to his official family as the State Conservation Commissioner. He qualified and assumed the duties of that office. At that time, Dr. Cheatum was Chief of the Bureau of Game, Division of Fish and Game, in the State Conservation Department and, as such, was directly under the supervision of and responsible to the commissioner.
On or about May 31, 1956 Commissioner Wehle was the guest of honor at a dinner held at the Hotel Woodruff, Watertown, New York, which was attended by over 150 other persons, including a number of local sportsmen, civic and business leaders, members of the press and sports writers. Commissioner Wehle made a speech on the general subject: "What's Wrong With The Conservation Department", in the course of which he allegedly said in part:
The plaintiff alleges in his complaint that the quoted words were uttered willfully, falsely and maliciously, with the intent to injure him and his good name and reputation and to destroy his usefulness in the field of conservation and demands damages in the sum of $200,000.
By his answer, the defendant-appellant denied generally all of the material allegations of the complaint and interposed a series of defenses which fall generally in the category of "fair comment", "immunity from suit based on official privilege" and by way of explanation and clarification of the language used as intending to mean something different from that attributed to it by the plaintiff.
Following joinder of issue, the plaintiff moved to strike the five separate defenses contained in the defendant's answer on the ground of legal insufficiency. The defendant cross-moved to dismiss the complaint for failure to state a cause of action (Rules Civ. Prac., rule 109). The Special Term granted plaintiff's motion in part and denied defendant's cross motion in its entirety.
On cross appeals to the Appellate Division, Third Department, that court unanimously modified, on the law, the order of Special Term by striking out the first defense (designated
The defendant-appellant, by his first defense (designated "II"), contends that the complained of statements which related in any way to the plaintiff were made without malice and in good faith; that the Grenadier Island project was a matter of grave public interest and concern to the taxpayers and inhabitants of the State and that it was not only his right but his duty as Commissioner of the Department of Conservation to report upon and discuss the policies, personnel, projects and general operation of the department so that the public might be kept fully informed and advised regarding its conduct and administration; in other words, that the utterance, although derogatory and defamatory in nature, in light of the background and circumstances of its making, was a fully justified expression of opinion and fair comment.
While the activities of a person holding public office may properly be criticized, whenever such criticism is of a derogatory or defamatory nature, the defense of fair comment is not available to one who makes false and untrue statements or unjustifiable inferences (Toomey v. Farley, 2 N.Y.2d 71). Such protection, as we have said, "extends to a fair and honest statement of actual facts relating to public acts and to reasonable and justifiable comment thereon and criticism thereof. It does not extend to attacks upon private character or to publishing defamatory things about an official even if the writer in good faith makes the publication believing his statements are true; neither does it permit a person to draw conclusions that are or that the jury may find are improper and unjustifiable" (Bingham v. Gaynor, 203 N.Y. 27, 33).
Here it is not claimed that the opinion expressed — and it may be deemed an opinion because of its derogatory nature — is based on truth. In fact, a careful reading of the pleadings indicates that the defendant-appellant denied he uttered the complained of statement and at the same time he failed to allege
Under Federal decisions, it has long been held that an executive official is absolutely privileged to publish false and defamatory matter of another in the exercise of his executive function if the matter has some relation to the executive proceeding in which the official is acting (3 Restatement, Torts, § 591). The policy underlying such official privilege was succinctly enunciated by HARLAN, J., viz.: "In exercising the function of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint." (Spalding v. Vilas, 161 U.S. 483, 498.) This privilege protects a judicial officer in respect to acts done in the course of his judicial duties (Bradley v. Fisher, 13 Wall. [80 U. S.] 335) and has been applied to alleged libelous publications by a department head (Spalding v. Vilas, supra) and reiterated in Glass v. Ickes (117 F.2d 273, cert. denied 311 U.S. 718), Joint Anti-Fascist Refugee Comm. v. Clark (177 F.2d 79, revd. 342 U.S. 123). The doctrine of immunity based on official privilege is recognized in this State, being based upon "consideration
The rationale underlying the absolute privilege accorded official reports made in due course is not to be confused with comments made in the course of an after-dinner speech to a group of citizens who can do nothing about it in any event. To extend the absolute privilege to such activities would lead to all sorts of abuses and do great harm to individual victims without improving the service of government. This case falls within that general condemnation, since Commissioner Wehle had at hand a ready, effective, orderly and legal means of dealing with Dr. Cheatum, such, for instance, as the filing of charges and giving him an opportunity to be heard. The speech made by Commissioner Wehle, as the Appellate Division observed, was not greatly different from a speech of a member of the Legislature speaking to his constituents, explaining his votes or
The third defense (designated as "IV") realleges the same allegation theretofore made (without repeating) for its first defense (designated as "II") and second defense (designated as "III") as a partial defense in mitigation of damages. Since, in the decision about to be made, the first defense (designated as "II") is being allowed as a complete defense insofar as it is based on fair comment, there is no need to repeat such allegations; likewise, since the allegations in the second defense (designated as "III") are deemed insufficient because the defense of absolute privilege is not available, they cannot stand as a partial defense for, in any event, the defendant has no immunity apart from his office. So viewed, a reallegation of the same matters based on the defense of absolute privilege has no place in the pleadings as a partial defense and was properly stricken in the court below for, quite obviously, its retention as a partial defense under such circumstances would be prejudicial to a fair trial.
Nothing more remains except a brief word as to the fourth defense (designated as "V") which was an attempted clarification and explanation of the language used while the fifth defense (designated as "VI") was a general denial that the reference to the secret society or fraternity among the employees had reference to Dr. Cheatum. The Appellate Division quite properly allowed the fourth defense to stand as relevant to the issue of punitive damage should that aspect be reached. In respect to the last partial defense, the Appellate Division succinctly disposed of it in the following comment: "The plaintiff has the burden of proving that the statements were reasonably understood by listeners in the sense that would make them defamatory (Restatement, Torts, § 613). It is immaterial what the defendant
This partial defense was stricken, and properly so, since the defendant may prove under his general denial that he did not use the words which the complaint attributes to him.
The order appealed from should be affirmed, without costs, and each of the four certified questions answered in the affirmative.
The present appeal concerns only questions of pleading. The merits of the controversy are not before us for decision. The error in the order appealed from, in my judgment, consists in striking out the defenses of fair comment and of qualified privilege. Unless these defenses are allowed to stand, it is presumed that the words were false, uttered in malice and that plaintiff has been damaged (Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58; Byam v. Collins, 111 N.Y. 143, 158; Hunt v. Bennett, 19 N.Y. 173, 176; Devoy v. Irish World & Amer. Ind. Liberator Co., 208 App. Div. 319). If defendant's statement is protected by qualified privilege, however, malice is not presumed in aid of the plaintiff's case but must be proved as an actual fact as well as that the statement is false (Ashcroft v. Hammond, 197 N.Y. 488). If the jury were to find that the statement was not made maliciously, that would end the case under that defense. If the statement was fair comment upon facts truly stated, that would also be a complete defense to the action, and would not operate merely in mitigation as the order now provides. Mitigation formerly signified nothing except that it might reduce or avoid punitive damages (Bergmann v. Jones, 94 N.Y. 51; Abell v. Cornwall Ind. Corp., 241 N.Y. 327). Since Fleckenstein v. Friedman (266 N.Y. 19) it may relate to compensatory damage, but mitigation remains far removed from being a complete defense.
The first affirmative defense in the answer (designated "II") was held to be insufficient to allege a defense in fair comment, on the basis that its allegations do not tend to plead the truth of the assertion that plaintiff was guilty of "deliberate sabotage or gross neglect". This is the one slanderous charge in the speech. On it depends the plaintiff's cause of action. In
It is consequently erroneous, in my view, to hold that the answer is defective in not alleging the truth of the opinion that plaintiff is chargeable with sabotage or gross neglect. That is not fact but comment, as Judge DYE's opinion recognizes. The facts on which the comment is based are alleged to be true, and the comment is alleged to have been warranted by the facts stated and to have been made honestly and without malice.
That is the test of fair comment under the authorities, the leading ones being Foley v. Press Pub. Co. (226 App. Div. 535); Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers (260 N.Y. 106); Hoeppner v. Dunkirk Print. Co. (254 N.Y. 95).
If established at the trial, it is a complete defense to the action. The defense meets this test as it is pleaded in the answer. If evidence is introduced at the trial to support these allegations, the law requires that it be left to the jury to determine whether the facts underlying the comment were true, and whether the conclusion publicly drawn from them by defendant was fair comment or malicious slander. The usual rule applies that it is for the jury to decide whether the defense of fair comment has been established (Seelman, Law of Libel, § 246, and
The other defense in the answer which seems to me to have been erroneously stricken relates to privilege. Fair comment is a right open to all and is based upon the truth of the facts underlying the comment. Privilege depends upon occasions or relationships and protects a defendant even though the facts underlying the defamatory material turn out to be false. The defense of privilege in this answer, in my opinion, is not so clearly sufficient in law as the defense of fair comment. I agree with the majority that the absolute privilege is absent which would protect an official report or a speech on the floor of the Legislature or of Congress. Nevertheless a wise public policy would direct that a public officer, reporting to the public or to his constituents concerning the administration of the public business of the State, should be accorded qualified privilege. In many relationships the courts have found a qualified privilege the effect of which is to do away with the implied malice flowing from defamatory statements, and to require proof of actual malice and of falsehood in order to establish the cause of action. In the absence of a relationship entailing qualified privilege, it is, of course, sufficient for a plaintiff to show that defamatory words were spoken of and concerning him. If the libel or slander is per se, the law presumes malice, falsity and damages (Corrigan v. Bobbs-Merrill Co., supra; Byam v. Collins, supra). In cases of qualified privilege, however, malice and falsity are not presumed but must be proved (Ashcroft v. Hammond, supra).
In his answer Mr. Wehle pleaded that he is head of the Department of Conservation of the State of New York, the responsibility
From these diversified relationships to which qualified privilege has been attached, it is plain that it is not limited to official reports by public officers. It is said that under Bingham v. Gaynor (203 N.Y. 27, 32) qualified privilege does not apply to statements made by public officers to the public. That case is
One does not need to go all the way of Glass v. Ickes (117 F.2d 273, 277, cert. denied 311 U.S. 718) where the Federal Court of Appeals held that a press release by Secretary Ickes was protected by absolute privilege, in which he sought to forestall contributions to an oil lobbying fund. The opinion by Judge, afterwards Chief Justice, VINSON, said: "Some contention is made by the appellant that this privilege applies only to communications between governmental officials, and not to those from an official to the general public. No such limitation is justified by the language of the Supreme Court in the Vilas [Spalding v. Vilas, 161 U.S. 483] case, nor has this court recognized such a distinction. On the contrary, we have previously held a communication, released generally to the press, within this executive privilege."
The Supreme Court of Pennsylvania held to similar effect in Matson v. Margiotti (371 Pa. 188 ) where the State Attorney General had written a letter to a District Attorney advising him that one of his assistants had communist affiliations, which was released to the press.
It seems that unless qualified privilege is extended to the utterances of public officers whose duty it is to keep the public informed about the operation of their departments, informing the public will become difficult and dangerous concerning governmental affairs in which the people are and ought to be concerned. It is enough, in such situations, if a plaintiff may recover in a slander or libel suit on proving actual malice and falsehood, without their being presumed in his favor.
The circumstance that the answer contains a denial that the statement attributed to defendant in the complaint was made, does not preclude him from pleading the affirmative defenses of fair comment and qualified privilege. Section 262 of the Civil Practice Act allows a defendant to set forth in his answer as many defenses as he has, and this is construed to permit inconsistent defenses to be alleged (Carter, Macy Co. v. Matthews, 220 App. Div. 679; Societa Italiana v. Sulzer, 138 N.Y. 468). Even before this section of the Civil Practice Act read in the
The order appealed from should be modified so as to sustain the first affirmative defense as a complete defense, and to sustain the second defense as a complete defense of qualified privilege and the third defense as a partial defense; and, as so modified, the order appealed from should be affirmed, with costs to appellant to abide the event. The first question certified should be answered in the affirmative, and the other three questions should be answered in the negative.
Order modified to the extent of sustaining the first affirmative defense of fair comment (designated in answer as "II") as a complete defense, and the third affirmative defense (designated in answer as "IV") as a partial defense in mitigation insofar as it reiterates paragraphs 1 through 23 of the answer, and, except as so modified, affirmed, without costs. Questions certified Nos. 1 and 3 answered in the affirmative; question certified No. 2 answered in the negative; question certified No. 4 answered in the negative as to allegations of the answer 1 through 23, and in the affirmative as to allegations 24 through 27.