MEMORANDUM AND ORDER
BRIEANT, District Judge.
In this diversity action filed December 17, 1974 to recover damages for libel and invasion of privacy, defendant Doubleday & Company, Inc. (hereinafter "Doubleday") has moved for summary judgment dismissing the complaint as to it "upon the ground that the statements complained of in the complaint are about a public figure and were not published by Doubleday with knowledge of their falsity or with reckless disregard of the truth thereof, and are therefore constitutionally privileged."
Plaintiff A. E. Hotchner ("Hotchner") is an author and was a friend and sometime companion of the late Ernest Hemingway. Defendant Jose Luis Castillo-Puche ("Puche"), a resident of Spain, wrote a book in Spanish entitled Hemingway Entre la Vide y la Muerte (hereinafter "the book" or "the Spanish Edition"), which was published in Spain in 1968 by third-party defendant Ediciones Destino S.L. ("Destino"). Plaintiff is referred to in a generally uncomplimentary fashion in the Spanish Edition and, for purposes of this motion, defendant concedes that these unfavorable characterizations are not truthful, and that the toned down English version also defames him.
The Spanish Edition came to the attention of Doubleday. On May 18, 1970, after having it read and reviewed by knowledgeable persons, Doubleday purchased the English language rights to the book from Destino. Doubleday caused the book to be edited, translated, prepared for publication, printed and sold in the United States. On this publication, which took place in New York, plaintiff bases this action. Counsel agree that New York law applies.
I
Both Puche and Hotchner were friends of Hemingway and each claims to have been well acquainted with Hemingway's life and thoughts in the years immediately prior to his death in 1961. Hotchner is the author of a book entitled Papa Hemingway, A Personal Memoir, which was serialized in an American magazine in March and April, 1966 and published in the United States immediately thereafter with a substantial degree of commercial success.
Defendant contends that Hotchner is a public figure and, therefore, the standard applicable to plaintiff's claims is that first enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There, it was held, on First Amendment grounds, that a public official may recover damages for libel only if the defamatory publication "was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279-80, 84 S.Ct. at 726. The scope of this protection was extended in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), where the New York Times standard was applied to plaintiffs in defamation actions who were "public figures," although they did not hold public office.
The "public figure" doctrine was reaffirmed in words in Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-43, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), but the range of its application has been left cloudy. In defining the class of plaintiffs whose claims are limited by the New York Times rule, the Supreme
Although readily articulated, these standards pose difficulties in their application, as evidenced by the Gertz decision itself. Without reviewing the facts of the Gertz case in detail, the Supreme Court there treated as a "private citizen," as contrasted with a "public figure," a prominent attorney who had involved himself in civil litigation against a policeman, brought by the family of a murdered youth to recover money damages for wrongful death. The policeman had been convicted of murder in the second degree. The civil case, closely related to a criminal prosecution, and the motives of those bringing it, as well as its possible chilling effect on future police action would seem clearly within the area of protected First Amendment activities, "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people" (Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L. Ed.2d 1498, quoted with approval in New York Times Co. v. Sullivan, supra at 269, 84 S.Ct. at 720 [1964]).
In addition to injecting himself voluntarily into this area of public controversy, Gertz had achieved some public prominence in his own right. He had served as an officer of the National Lawyers Guild, and had "considerable stature as a lawyer, author, lecturer, and participant in matters of public import" [fn. 3 of Gertz, p. 330 of 418 U.S. p. 3002 of 94 S.Ct. quoting from the opinion below, 471 F.2d 801, 805].
Perhaps if attorney Gertz was not a public figure, nobody is.
In Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966), the Supreme Court instructed the trial court upon retrial "that, as in the case with questions of privilege generally it is for the trial judge in the first instance to determine whether the proofs show [plaintiff] to be a `public official.'" Whether a party is a "public official" is more readily ascertainable than whether he is a public figure, and is a fact upon which it is unlikely that reasonable minds could differ. However, the cases appear to authorize this Court to determine whether Hotchner is a "public figure," just as we would determine whether another plaintiff is a "public official."
We further note that the amended complaint states as a second claim for relief an invasion of plaintiff's statutory right of privacy under N.Y. Civ.Rights Law § 51. Construing this statute in light of the New York Times standard, Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) held that the First Amendment barred recovery for "false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." See Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 542, 42 L.Ed.2d 419 (1974). Whether a matter is of "public interest" and provides its author and publisher with this qualified privilege is likewise an issue for the court's determination. Man v. Warner Bros., Inc., 317 F.Supp. 50 (S.D.N.Y.1970). See also Gordon v. Random House, Inc., 486 F.2d 1356 (3d Cir. 1973), vacated, 419 U.S. 812, 95 S.Ct. 27, 42 L.Ed.2d 39 (1974); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970); Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 424 F.2d 920, cert. denied, 398 U.S. 940, 90 S.Ct. 1844, 26 L.Ed.2d 273 (1970). But see, Taggart v. Wadleigh-Maurice, Ltd., 489 F.2d 434 (3d Cir. 1973), cert. denied, 417 U.S. 937, 94 S.Ct. 2653, 41 L. Ed.2d 241 (1974).
Although the issue of whether a plaintiff in a defamation action is a public figure poses a mixed question of law and fact, it is nevertheless one for the Court, not the jury, to determine.
In Montandon v. Triangle Publications, Inc., 45 Cal.App.3d 938, 120 Cal.Rptr. 186, cert. denied, 423 U.S. 893, 96 S.Ct. 193, 46 L.Ed.2d 126 (1975), the Court held that an author who made promotional appearances on radio and television was "a public figure and a person of general newsworthiness," finding it unnecessary to detail the evidence which supported this conclusion. Without referring to the Gertz decision, the Court adopted the definition of a public figure pronounced in Cepeda v. Cowles Magazines and Broadcasting, Inc., 392 F.2d 417, 419 (9th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110 (1968):
Plaintiff Hotchner has written several novels and nonfiction books, as well as articles, short stories and original television plays. His work, Papa Hemingway,
In the Spring of 1948, Hotchner had been a staff writer for the magazine "Cosmopolitan", which dispatched him to Cuba, in his words, "to ask Hemingway to write an article on a particular topic." From that beginning there developed a close personal friendship which continued until July 2, 1961, when Hemingway killed himself.
As a result of his close association with Hemingway, Hotchner created a number of adaptations of Hemingway's works for use in radio, television and motion pictures. During the period from 1966, when his book appeared, to the present, Hotchner has given lectures for fees concerning Hemingway's activities. Hotchner's works have appeared on television and in widely circulated popular magazines.
Although Papa Hemingway has brought Hotchner some measure of notoriety, it is doubtful whether his name is widely-recognized. In reaching its conclusion that attorney Gertz was not a public figure, the Supreme Court observed:
Accordingly, it would appear that, although Hotchner was the author of a "best seller" literary work, he cannot be considered a public figure for all purposes unless and until the Supreme Court modifies the doctrine of Gertz.
Defendant argues alternatively, with considerable persuasion, that Hotchner, by publishing Papa Hemingway, and by adapting works of Hemingway for television, movies, records and ballet, voluntarily "inject[ed] himself . . . into a public controversy" surrounding the latter years of Hemingway's life, or into the controversy, stated in narrower terms, of Hotchner's personal relationship with Hemingway. Plaintiff admits that he is "thought of in some way, as a Hemingway authority, having known him and dealt with his work and having received some recognition because of it." (Deposition of A. E. Hotchner, April 3, 1975, p. 66).
Gertz did not overrule prior decisional law which extends the protection of the New York Times standard to defendants in actions brought by bona fide public figures. In Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 154-55, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967), Justice Harlan, writing for a plurality of the Court, explained the rationale for the more stringent standard for recovery by public figures:
Hotchner injected himself into the controversy surrounding the later years of Ernest Hemingway's life. Hemingway's life as an expatriate is a matter of considerable public interest, as is evidenced by the success of Hotchner's book and by Doubleday's interest in Puche's book. Hotchner did not profess to enter into the public discussion as an academic biographer, literary critic or detached observer of Hemingway. In the Foreword to Papa Hemingway, Hotchner wrote:
The alleged defamation resulted from Puche's later published rejection of this claim of intimate knowledge.
Hotchner continues to be an active author who lectures and contributes to popular magazines frequently. Hotchner has access to publications "`to expose through discussion the falsehood and fallacies' of the defamatory statements." Indeed, Hotchner's access to certain publications may have been improved by his personal involvement in this controversy.
Accordingly, upon the affidavits submitted with this motion, and the depositions and answers to interrogatories, the Court finds that, for purposes of this litigation, plaintiff Hotchner has achieved the status of a public figure.
II
Finding Hotchner is a public figure, and the New York Times standard is to apply, plaintiff will have to demonstrate that the book was published with actual malice. "Actual malice," here means knowledge of the falsity of the published statements or reckless indifference as to whether they are true or false. "Actual malice" is to be distinguished from a bad or corrupt motive or some personal spite or desire to injure the plaintiff, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967), although such subjective factors may be relevant to the issue of "actual malice."
Doubleday asserts, without contradiction, that it purchased the English language rights to the book from Destino, a reputable Spanish publisher and third-party defendant in this action. Destino published the book in Spain in 1968 without let or hindrance, or litigation, by Hotchner or other persons defamed therein.
Doubleday secured the services of a Spanish translator to translate Puche's Spanish text into English. An Editor, whose affidavit in support of the motion has been considered, was assigned to supervise the publication of the American edition. The Editor discovered certain uncomplimentary remarks concerning the plaintiff. Following established policy at Doubleday, the Editor referred these passages to Doubleday's Contracts Department for their "review from the standpoint of libel." In so doing, the Editor attached a note which reads in part:
In their affidavits supporting the motion for summary judgment, both the Editor and the Assistant Contracts Manager assert that they had no suspicion that anything said in Puche's book about Hotchner was false.
Doubleday's Editor wrote a letter to Puche, dated August 6, 1973, discussing certain pre-publication difficulties, among them Doubleday's concern about the references to Hotchner. In soliciting the author's approval to alter the translated version of his text, the Editor wrote:
In a letter from Madrid on September 12, 1973, Puche responded in part:
Thereupon, Doubleday's Editor revised the text intending "that the substance of the statements should not be changed, as the author's unique views of Hemingway and his entourage, already published and
Plaintiff contends that the observations of the Doubleday employees and the exchange of correspondence with Puche, when taken together with errors found in the Spanish edition by Doubleday's translator, demonstrate that Doubleday was or should have been on notice that Puche may have been motivated by some animus toward Hotchner. Plaintiff contends that, so alerted, Doubleday should have made reasonable attempts to check the truth of the statements made and the accounts of incidents described. Since Doubleday was not faced with the deadline pressures that plague newspaper editors, plaintiff contends that Doubleday might have confirmed Puche's accounts by verifying facts with Hemingway's widow or with other persons present in Spain during the periods described in the book.
For purposes of opposing this motion, plaintiff contends that, at a minimum, Doubleday's failure to investigate under the circumstances presented here raises a question for the jury's determination whether Doubleday published the American edition with knowledge of or reckless disregard of the claimed falsity.
A factual issue exists as to whether defendant published its book with reckless disregard for the truth or falsity of its contents.
The exchange of memoranda between the Editor and other employees of Doubleday and correspondence between the Editor and Puche could be construed by the triers of fact as evidencing an awareness by Doubleday that Puche intended to portray Hotchner in an unfavorable light. If the jury were to find the statements made false, then the jury might further find that, in light of their knowledge of Puche's low regard for Hotchner, Doubleday's employees were culpably reckless in not investigating further, or deleting the defamatory remarks.
A defendant in a defamation action cannot automatically escape liability by submitting affidavits which attest to the fact that the publication was made with a belief that the statements therein contained were true. "The finder of fact must determine whether the publication was indeed made in good faith." St. Amant v. Thompson, supra, at 732, 88 S.Ct. at 1326.
The issue of whether this publication was made with actual malice remains as a serious factual dispute which the jury must be permitted to determine. Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969); Buckley v. Esquire, Inc., 344 F.Supp. 1133 (S.D.N.Y.1972). See also, Sprouse v. Clay Communications, Inc., 211 S.E.2d 674, 689-90 (W.Va.Sup.Ct.), cert. denied, 423 U.S. 882, 96 S.Ct. 145, 46 L.Ed.2d 107 (1975); Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970).
III
Doubleday contends that the plaintiff in a libel or invasion of privacy action must bear a special burden to withstand a defendant's motion for summary judgment, lest the burdens of litigation have a chilling effect on the exercise of the freedom of the press. Defendant relies heavily upon heroic language in Meeropol v. Nizer, 381 F.Supp. 29, 32 (S.D.N. Y.1974), stating:
The last sentence quoted undercuts the very rule defendant would have us recognize. Saying that summary judgment is required where "it becomes clear that a plaintiff cannot establish . . . `actual malice'," a requisite element in a claim of this nature, is the equivalent of a showing, in the precise words of Rule 56(c), F.R.Civ.P., that as to a necessary element of the claim there "is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In Meeropol, the Court held that, under the circumstances of that case, plaintiffs could not demonstrate actual malice as required under the New York Times standard.
Similarly, although the Court in Grant v. Esquire, Inc., 367 F.Supp. 876, 881 (S.D.N.Y.1973) also stated that "plaintiff [in a defamation action] must make a more persuasive showing than required of an ordinary litigant in order to defeat a defense motion for summary judgment," the Court denied the motion in part because of the traditional considerations relied upon in denying summary judgment. The Court dismissed motion picture actor Cary Grant's libel claim because the publication on its face was not libelous, and "no amount of `innuendo'" could make it such, but found that there existed issues of fact which made summary judgment inappropriate as to the plaintiff's claim under § 51 of the New York Civil Rights Law.
Principles applicable to summary judgment motions generally, are applicable to such motions when made in a defamation action. Goldwater v. Ginzburg, supra; Time, Inc. v. Ragano, supra; Rinaldi v. Village Voice, Inc., 47 A.D.2d 180, 365 N.Y.S.2d 199 (1st Dept.), cert. denied, 423 U.S. 883, 96 S.Ct. 153, 46 L.Ed. 112 (1975); Thomas H. Maloney & Sons, Inc. v. E. W. Scripps Co., 43 Ohio App.2d 105, 334 N.E.2d 494, cert. denied, 883 U.S. 423, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975).
In Goldwater, supra, the Court found summary judgment to be inappropriate where "the non-moving party filed affidavits and relevant materials to show affirmatively that there was a genuine issue of fact for a trier of fact to resolve, the existence of [defendant's] possible actual malice." Id., at 338 n. 21. See also Buckley v. Esquire, Inc., supra. See generally Trails West, Inc. v. Wolff, 32 N.Y.2d 221, 344 N.Y.S.2d 863, 298 N.E.2d 52 (1973); Cole Fisher Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 288 N.Y.S.2d 556 (1st Dept. 1968), aff'd mem., 25 N.Y.2d 943, 305 N.Y.S.2d 154, 252 N.E.2d 633 (1969). Goldwater further held that upon such a motion in a defamation case, as in all other actions, the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Goldwater, supra, 337 citing United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). See also Time, Inc. v. Ragano, supra.
Although summary judgment in a defamation action might serve the prophylactic function of sparing authors and publishers the chilling effect of litigation, "[t]his procedural weapon is a drastic device since its prophylactic function, when exercised, cuts off a party's right to present his case to the jury." Heyman v. Commerce and Industry Insurance Company, 524 F.2d 1317 (2d Cir. 1975).
As stated earlier, the Court finds that there exists a genuine issue as to a material fact, that is, whether
CONCLUSION
Defendant Doubleday's motion for summary judgment is denied.
So ordered.
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