YOUNGDAHL, District Judge.
This case is before the Court on plaintiff's motion for judgment on the pleadings or summary judgment with respect to defendants' counterclaims, and defendants' motion for judgment on the pleadings or summary judgment.
Plaintiff, a member of the House of Representatives, has brought suit against the defendants for libel resulting from their publication of a weekly newsletter entitled "The Lowdown on Farm Affairs from Washington" (Volume 5, Number 27, dated August 1, 1958). The gravamen of the complaint is that the newsletter falsely stated that the plaintiff had a "connection with" and sponsored "the notorious Communist Front known as the `American Peace Crusade'" and in addition, reprinted only a portion of a House Report,
The defendants have denied the damaging allegations in the complaint and have lodged two counterclaims. The first alleges that plaintiff,
In the second counterclaim, defendant Martz alleges that in a letter dated August 29, 1957, "and on numerous occasions subsequent thereto", the plaintiff "caused to be published and republished" the following defamatory statement:
In his reply, plaintiff admits that the statement complained of was inserted by
The privilege of legislators to be immune from civil process for their actions or statements in legislative proceedings had its beginnings at least as early as 1399.
Its purpose is clear: insure legislative peace of mind. The theory is that in a democracy a legislature must not be deterred from frank, uninhibited and complete discussion; since "[o]ne must not expect uncommon courage even in legislators,"
The defendants have contended that the privilege, absolute when it exists, is limited, nevertheless, by a requirement that the conduct complained of be "pertinent" to official business of the legislature. While it appears that the common law immunity was limited to conduct that had some relation to the business of the legislature,
Thus if the counterclaim here were confined to an allegation that the defamatory words were spoken on the floor of the House, plaintiff's motion would have to be granted. Moreover, it would be of no avail to the defendant to show that the libel appeared in the Congressional Record since everything said on the floor of the House, as a matter of course, is published in the Congressional Record;
But what of republication? Should an absolute privilege exist to bar suits for defamation resulting from a Congressman's circulation of reprints or copies of the Congressional Record to non-Congressmen? The reason for the rule—complete and uninhibited discussion among legislators—is not here served. Accordingly, the absolute privilege to inform a fellow legislator (either by way of speech on the floor or writings inserted in the Record) becomes a qualified privilege for the republication of the information. "Though a member of congress is not responsible out of congress for words spoken there, though libellous upon individuals; yet if he causes his speech to be published, he may be punished as for a libel by action or indictment. This is the English and the just law. [citing Rex v. Abingdon, 1 Esp. 226, Peake 310 (1795); Rex v. Creevy, 3 Eq.N.P.Cases, 228, 1 M. & S. 273 (1813)]." 1 Kent's Commentaries 249, note c (8th Ed. 1854).
The American Law Institute's Restatement of Torts § 590, comment b reads, in part:
In Long v. Ansell,
And see Cole v. Richards, 1932, 108 N.J. L. 356, 158 A. 466; Methodist Federation for Social Action v. Eastland, D.C.D.C. 1956, 141 F.Supp. 729 (dissenting opinion).
Congressmen undoubtedly have a responsibility to inform their constituents, and undoubtedly circulation of the Congressional Record is a convenient method. It does not follow from this, however, that an absolute privilege is necessary; a qualified privilege is enough. Congressmen are thereby protected and thereby free to inform their constituents —even if the information is defamatory —so long as the act is not done maliciously.
When analogy to the judicial privilege is made, it further appears reasonable to hold that Congressmen have only a qualified privilege, and thus are liable for malicious defamation, for the unofficial dissemination of the Congressional Record. While a judge has an absolute privilege for the official publication of a judicial statement (as by reading an opinion in open court or filing it in the clerk's office), there is only a qualified privilege for the unofficial circulation of copies of a defamatory opinion. Murray v. Brancato, 1943, 290 N.Y. 52, 48 N.E.2d 257; Annotation, 1943, 146 A.L. R. 913; Francis v. Branson, 1933, 168 Okl. 24, 31 P.2d 870; Note, 12 Ford.L. Rev. 193 (1943).
The Court concludes that the first counterclaim must be dismissed since the allegations restrict it to a claim for damages flowing from an insertion in the Congressional Record; no allegation of republication is made. That this is all that was intended is clearly displayed by an examination of the deposition of the plaintiff which was taken on two separate occasions by the defendants and covers 177 pages. No question regarding the circulation of copies or republication of the Record in any regard was put to the plaintiff by defense counsel. Further, the Points and Authorities submitted in defendant's opposition to plaintiff's motion reads, at p. 1: "Defendants countersued Mr. McGovern for the same
Plaintiff contends that this counterclaim must be dismissed because it is barred by the one-year statute of limitations for libel actions.
While a recoupment is not barred by the statute of limitations if the main action itself is timely, this counterclaim is not a recoupment since it is based on a different transaction.
Accordingly, the counterclaim is dismissed as barred by the statute of limitations.
Defendants have moved for judgment on the pleadings.
The complaint states a claim for libel, unprotected by an absolute privilege. As discussed in connection with the plaintiff's privilege, there is only a qualified privilege for the republication of public reports. De Savitsch v. Patterson, 1946, 81 U.S.App.D.C. 358, 159 F.2d 15.
Whether the defendants acted maliciously is thus a material question of fact; since it is in dispute, summary judgment cannot be entered. Moreover, it is essential to the privilege, claimed by the defendants, that their republication was a fair and accurate one. It is undisputed that only a portion of the House Report was set forth in the newsletter and also that defendants commented on the Report. Whether the privilege is thus available at all is also in dispute.
The motion by the defendants is denied.
The part that defendants reprinted was a "Daily Worker" story, reprinted by the Committee, which listed plaintiff as one of the sponsors of the American Peace Crusade (see pp. 138-139); the part omitted from the newsletter was the Committee's statement in bold type in the front of the report:
"Note.—The names of the persons mentioned in this report as being connected with the organizations which are herein discussed were taken from actual documents of these organizations and the public press.
"It has come to the attention of the committee that some of the persons who are so described in either the text or the appendix withdrew their support and/or affiliation with these organizations when the Communist character of these organizations was discovered. There may also be persons whose names were used as sponsors or affiliates of these organizations without permission or knowledge of the individuals involved.
"The committee, having no desire to charge any innocent person with having Communist affiliations, will therefore publish the names of any individual who has so withdrawn from these organizations or whose name was used by these organizations without permission or knowledge in a future report if such person will communicate with the committee, giving the circumstances in his particular case. (Emphasis supplied.) It is the omission of the italicized sentence about which the plaintiff particularly complains.
Reprisal by the legislature itself is permitted, art. 1, § 5, cl. 2, although Congress has not been enthusiastic about exercising this power. See Judge Yankwich's discussion, supra, note 4, at 972, and see discussion of the episode, "without precedent", (in 1924) concerning Representative Blanton in Luce, "Legislative Assemblies" 515-16 (1924).
In an action for slander filed within the statutory period, the defendant counterclaimed for libel and attempted to rely upon the timely filing of the complaint to justify the late filing of the counterclaim. The court held that the "statute of limitations continues to run in respect of a set-off which has no relation to the principal claim", relying upon Durant v. Murdock, although the claims did not appear to involve set-offs since, for one thing, unliquidated amounts were involved. Walker v. Pilkerton, D.C.D.C.1949, 82 F.Supp. 321, 322. See also Sullivan v. Hoover, D.C.D.C.1947, 6 F.R.D. 513.