This is an action for defamation. The plaintiff is a Justice of the Supreme Court, Second Judicial District. His complaint alleges that he was libeled in the book, "Cruel and Unusual Justice", authored by defendant Jack Newfield and published by defendant Holt, Rinehart & Winston, Inc. After extensive pretrial discovery, defendants moved for summary judgment. Their motion was denied by Special Term. The Appellate Division, by a closely divided court, affirmed (53 A.D.2d 839), but granted defendants leave to appeal to our court upon a certified question.
The issue before us is whether plaintiff has established the existence of material facts sufficient to create a triable issue on his libel cause of action. More specifically, resolution of this appeal turns on whether plaintiff, a public official, has set forth facts sufficient to generate a triable issue on the constitutional elements of the libel complaint. (New York Times Co. v Sullivan, 376 U.S. 254.)
Jack Newfield is a controversial, well-known, investigative journalist. In 1972, Newfield focused his attentions on the criminal justice system in New York State, with particular emphasis on the administration of criminal justice in New York City. In the fall of 1972, he authored five articles on judicial conduct which appeared in the Village Voice, a weekly newspaper. An additional article, "The Ten Worst Judges in New York", was published in New York Magazine. The thrust of these articles was that Judges in the New York City courts were selected for political reasons and not on the merits of their qualifications for judicial office. Several Judges, identified by name, were described as incompetent or corrupt, and several decisions rendered by these Judges were cited by the author to illustrate his criticisms. The author contended that these Judges were lenient on defendants with political influence and with defendants charged with distribution of significant amounts of narcotics. By contrast, it was asserted, these same Judges were too harsh on defendants from disadvantaged backgrounds, especially on common narcotics addicts charged with comparatively minor offenses. Newfield advocated the removal of these Judges from the Bench and called for over-all reform of the method of selecting Judges. Listed as among the 10 worst Judges in New York was plaintiff. The Newfield articles were highly critical of plaintiff's judicial performance.
Prior to the publication of the Newfield series, a separate news article appeared in the New York Daily News reporting that Justice RINALDI was one of four Judges accused by the Joint Legislative Committee on Crime of handing down "wrist-slap" sentences in felony narcotics cases. During the time that the Newfield articles were appearing, the New York Times published a news story that plaintiff had sentenced an organized crime figure, charged with bribery of a police officer, to a fine of $250, while, on that same day, he imposed a sentence of imprisonment, with a maximum of five years, on a 19-year-old youth alleged to have robbed a drugstore.
In May, 1973, plaintiff brought an action against the Village Voice and its advertising agency for libel and invasion of privacy committed in an advertisement for the Voice which appeared in the New York Times. The advertisement contained
Plaintiff was indicted, on November 13, 1973, by the Extraordinary Special Grand Jury of Kings County on two counts of perjury committed before the Grand Jury. The Grand Jury had been investigating Justice RINALDI'S disposition of two cases unrelated to those reported earlier by Newfield. Upon indictment, plaintiff was suspended from performance of judicial duties. He was acquitted of these charges in August, 1974, and was re-elected to the Supreme Court, without opposition, in November, 1974.
During the pendency of the criminal charges against plaintiff, Holt, Rinehart & Winston, Inc., a publishing house, published a book by Jack Newfield entitled "Cruel and Unusual Justice". The book consisted largely of reprints of Newfield's original Voice and New York Magazine article. The articles were edited slightly for style and form during the course of preparation of the book and were updated through the addition of postcripts. The book is divided into two parts. The first part, "Prisons", related to a description of alleged abuses committed in various penitentiaries located in New York State. The latter portion of the book, "Courts", contains the reprints of Newfield's original series on judicial performance and selection in New York City.
Plaintiff commenced this action for libel against Newfield, Holt, Rinehart & Winston, and the Village Voice, Special Term granted summary judgment to the Voice on the ground that the Voice had merely acquiesced in the republication of the alleged libel. However, motions by the other two defendants for summary judgment were denied. On cross appeals, the Appellate Division affirmed. The only issue presented to our court is whether the separate motions for summary judgment of defendants Newfield and Holt, Rinehart & Winston were properly denied.
Plaintiff alleged, in his complaint, that defendants maliciously published false, scandalous and defamatory matter by which defendants meant "that the plaintiff was and is a
In a chapter entitled, "The Ten Worst Judges in New York", Newfield wrote that plaintiff "is very tough on long-haired attorneys and black defendants, especially on questions of bail, probation, and sentencing. But his judicial temper softens remarkably before heroin dealers and organized crime figures." Newfield set forth three illustrative cases. In August, 1972, a narcotics distributor, named Norman Burton, with a history of 12 prior arrests, had been held on a charge of heroin possession and on a charge of attempted bribery of a police officer. Plaintiff released Burton without bail. In October, 1970, another narcotics dealer, Clifton Glover, had been permitted to plead guilty and was then given a conditional discharge. Glover could have received a maximum sentence of 25 years' imprisonment. Glover had been charged with a class C felony for which the statute specifically prohibited the imposition of conditional discharges. The third case, People v Vario, arose in Suffolk County, where plaintiff was assigned for the summer of 1967. Plaintiff "caused a local scandal" by permitting three prominent organized crime figures, charged with bribery and conspiracy, to plead guilty to misdemeanors and assessing only $250 fines. The prosecutor had recommended that the three each serve at least one year in prison.
In a second chapter, "Justice Gets a Fix", Newfield again reported plaintiff's dispositions in People v Burton and People v Glover. With reference to his release of Burton without bail, it was stated, "[t]his was not the first time Judge Rinaldi has let a heroin dealer go free. He has a reputation among lawyers and court reformers for going soft on pushers, especially
Newfield stated that he had spent several weeks carefully analyzing records of plaintiff's previous dispositions. Newfield detected a "disturbing pattern". "Blacks and Puerto Ricans got high bail and long sentences. Defendants connected with organized crime families were treated permissively — motions granted, misdemeanor pleas accepted, suspended sentences given, fines imposed instead of jail terms. Occasionally large-scale heroin dealers would get inexplicably lenient sentences, even conditional discharges, for Class A felonies. And certain Brooklyn lawyers would almost always win their cases against Rinaldi. My instincts smelled a rat. I decided to begin a personal crusade to alert the judicial, legal, and political establishments to this incompetent and probably corrupt member of the judiciary."
Although these two chapters contained the bulk of the criticism of plaintiff, plaintiff was also mentioned in several other portions of the book. Newfield advocated the removal of plaintiff from judicial office, asserting that there was a "sufficient pattern of incompetent decisions" made by plaintiff "to justify the rare spectacle of a judicial trial." Further, Newfield contended that plaintiff has "influential friends outside the court system", as evidenced by his assignment to Suffolk County part of the year, despite the objections of the local District Attorney. Plaintiff allegedly was "cruel and abusive to defendants". Finally, it was reported that "[e]very law enforcement agency in the state is aware" of plaintiff's "reputation for going easy" on members of organized crime. Assertedly, "the Joint Legislative Committee on Crime has a whole file full of suspicious dispositions" by plaintiff in cases involving organized crime.
In his complaint, the plaintiff alleged that, as a result of the book, his good name and reputation have been damaged and he has been held up to public scorn, ridicule and contempt. He sought $5,000,000 in damages. No special damages were alleged. Plaintiff's contention is that Newfield failed to accurately report the facts of the cases relied upon to illustrate his conclusion that plaintiff was "incompetent", "probably corrupt",
There is a fourth case in dispute as well, People v Agro, mentioned in the New York Times account. In this case, defendants were charged with having conspired to swindle large sums of money from Macy's department store. Upon the recommendation of a prosecutor, all defendants were permitted, by plaintiff, to plead to petit larceny. Plaintiff subsequently gave Salvatore Agro a suspended sentence. The official transcript reflects that only the attorney for the defendant, and no prosecutor, appeared at the sentencing proceeding.
Plaintiff also relies upon two reports which found Newfield's accusations to be without merit. The first report is by the Brooklyn Bar Association and is dated November 13, 1972.
There is only one further fact to be noted. In the course of an examination before trial, Newfield stated that the sources for some of his disparaging comments about Justice RINALDI were attorneys, some from the Legal Aid Society, who regularly practice in the Brooklyn courts. While he disclosed the identity of a few of his sources of information, Newfield, for the most part, invoked the benefits of a statute shielding newsmen from contempt for failure to reveal a news source. (Civil Rights Law, § 79-h.) His authority to do so has not been challenged but the defendants have been precluded from calling as witnesses at the trial any source who Newfield refused to identify.
It is true, as noted by the dissent (p 388), that Newfield in the course of an examination before trial in the earlier action against the Voice, made a self-serving statement that he had not intended to allege corruption or venality. It is also true, and more to the point, that, in Newfield's answer in this action, it was admitted that the articles complained of "speak for themselves". Newfield's affidavit, submitted on the summary judgment motion in this action, specifically states that it is his contention "that the allegedly defamatory material originally published in the Voice (and later republished in [the book]) was true at the time of publication." Indeed, he later asserted that "at the time I completed work on [the book], I had no reason to doubt the accuracy of the material contained therein and to this very day continue to believe in the accuracy of all the factual material contained in the book, as well as the reasonableness of the many opinions I drew therefrom."
To begin with, we have no doubt that the complaint states a good cause of action for libel per se and that there was no need for plaintiff to allege special damage. "Any written or printed article is libelous or actionable without alleging special damages if it tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society." (Sydney v Macfadden Newspaper Pub. Corp., 242 N.Y. 208, 211-212; Gates v New York Recorder Co., 155 N.Y. 228, 231, 232.) Certainly, to falsely state that a Judge is incompetent and corrupt, especially where, as here, there are strong undertones of illegality, is to hold him up to disgrace and contempt. Thus, unlike James v Gannett Co. (40 N.Y.2d 415, mot for rearg den 40 N.Y.2d 990), there is no question but that at common law, as it stood prior to New York Times Co. v Sullivan (376 U.S. 254, supra), the statements complained of are defamatory. But the matter does not end there.
The plaintiff is a public official and this libel action is, therefore, governed by the constitutional principles first enunciated in New York Times Co. v Sullivan (376 U.S. 254, supra). In the Times case, the Supreme Court took note of the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." (376 US, at p 270.) The court ruled that the First Amendment prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless the official proves that the statement was made with actual malice — i.e., with knowledge that the statement was false or with reckless disregard of whether it was false or not. (376 US, at pp 279-280.) The constitutional standard requires that the plaintiff establish the existence of actual malice by proof of "convincing clarity". (376 US, at pp 285-286.)
More recent decisions make clear the great extent to which New York Times and its progeny have altered traditional rules governing libel actions. At common law, the libelous
The nature of the statement is critical. The First Amendment does not recognize the existence of false ideas. "However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." (Gertz v Robert Welch, Inc., 418 U.S. 323, 339-340.) Opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions, provided that the facts supporting the opinions are set forth. (Buckley v Littell, 539 F.2d 882, 893, cert den 429 U.S. 1062; Restatement, Torts 2d, § 566.) Especially in a State in which Judges are elected to office, comments and opinions on judicial performance are a matter of public interest and concern. The rule of the Times case was designed to protect the free flow of information to the people concerning the performance of their public officials. (Garrison v Louisiana, 379 U.S. 64, 77.) The public, clearly, has a vital interest in the performance and integrity of its judiciary.
The expression of opinion, even in the form of pejorative rhetoric, relating to fitness for judicial office or to performance while in judicial office, is safeguarded. (Cf. Letter Carriers v Austin, 418 U.S. 264, 283-284.) Erroneous opinions are inevitably put forward in free debate but even the erroneous opinion must be protected so that debate on public issues may remain robust and unfettered and concerned individuals may have the necessary freedom to speak their conscience. (See New York Times Co. v Sullivan, 376 U.S. 254, 271-272, supra.) Plaintiff may not recover from defendants for simply expressing their opinion of his judicial performance, no matter how
"Judges are supposed to be men of fortitude, able to thrive in a hardy climate." (Craig v Harney, 331 U.S. 367, 376.) Judicial office is not a place for those who are oversensitive to comments made in the public press. As Mr. Justice POWELL stated in Gertz v Robert Welch, Inc. (418 U.S. 323, 344, supra): "An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case." Judicial office demands an even higher price. Judges are constrained, by principles of judicial ethics, to refrain from engaging in unseemly public debate. (Cf. Code of Judicial Conduct, Canon 3, subd [A], par .) Obedience to the rule of silence can be painful when matters of personal integrity are at stake.
Whether a particular statement constitutes fact or opinion is a question of law. (Letter Carriers v Austin, 418 U.S. 264, supra; Gregory v McDonnell Douglas Corp., 17 Cal.3d 596, 601.) To state that a Judge is incompetent is to express an opinion regarding the Judge's performance in office. Likewise, to advocate a Judge's removal from office is to express the opinion that the Judge is unfit for his office. Both opinions, even if falsely and insincerely held, are constitutionally protected, if the facts supporting the opinion are set forth. Here, Newfield set forth the basis for his belief that plaintiff is incompetent and should be removed. Based upon the facts stated and public debate provoked by the statements, each reader may draw his own conclusion as to whether Newfield's views should be supported or challenged. In short, the matter is subject to public debate. Plaintiff may not delimit that debate by seeking to punish, through libel damages, those who would contribute to the debate through the circulation of strong, even harsh, contrasting opinions. By our holding, we do not necessarily imply our acceptance of Newfield's views; we say only that he has the right to express and circulate his opinion, whether he is right or not.
Newfield's assertions that plaintiff is "probably corrupt" and that his sentences of certain defendants were suspiciously lenient, with their strong undertones of conspiracy and illegality, rest on a different footing than his opinions as to plaintiff's judicial performance. These words were not used merely in a "loose, figurative sense" to demonstrate Newfield's strong
Here, plaintiff has not set forth sufficient evidentiary facts to generate a triable issue of fact as to the falsity and actual maliciousness of the accusations of criminal conduct. It is the plaintiff's burden to establish that he is not "probably corrupt" and that no sentences were unduly lenient. Although plaintiff was acquitted of criminal charges, the acquittal came after publication and involved dispositions other than the ones at issue in this case. While plaintiff has established that Newfield omitted certain facts from his statement of the cases, Newfield's over-all accusations have not been rebutted by anything more than a general denial of wrongdoing. Hence, there are no evidentiary facts which would support plaintiff's claim that Newfield's accusations are false. Further, there is no triable issue as to actual malice. Newfield did undertake a certain amount of investigation and there is no proof that he published his allegation of probable corruption knowing that allegation to be false or in reckless disregard of its truth. Even if his accusations are false, as they may well be, the Constitution, as interpreted by the United States Supreme Court, bars recovery.
As to Holt, Rinehart & Winston, the case is even stronger. The publisher placed its reliance upon Newfield's reportorial abilities and there is no showing that Holt, Rinehart &
It is true, of course, that false statements of fact can be actionable. However, the omissions in this case are not so material as to alter significantly the conclusion to be drawn from the episodes reported. (Cf. Hotchner v Castillo-Puche, 551 F.2d 910, 913-914, supra.) Although a sentencing court may place a certain amount of reliance upon representations of the attorneys appearing before it, including, of course, prosecutors, the court, and not the prosecutors, has the ultimate responsibility for the sentences imposed. Furthermore, the book was clearly not designed to be an objective account of plaintiff's judicial dispositions. The book took definite editorial positions on significant issues and advocated reforms and corrective action. Plaintiff was not the central focus of the book. It was a book written from a subjective, rather obvious, point of view and did not purport to be anything else. Although he could not make up facts out of whole cloth (cf. Spahn v Julian Messner, Inc., 21 N.Y.2d 124, app dsmd 393 U.S. 1046), omission of relatively minor details in an otherwise basically accurate account is not actionable. This is largely a matter of editorial judgment in which the courts, and juries, have no proper function. (James v Gannett Co., 40 N.Y.2d 415, 424, supra.) To paraphrase Chief Justice BURGER'S statements in Miami Herald Pub. Co. v Tornillo (418 U.S. 241, 258), the choice of material to go into a book and the decisions made as to limitations on size and content, and treatment of public issues and public officials, whether fair or unfair, constitute the exercise of editorial judgment. "It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time." Moreover,
The award of summary judgment in libel actions, as in civil actions generally, is appropriate where there are no material triable issues of fact. (E.g., CPLR 3212; James v Gannett Co., 40 N.Y.2d 415, supra; Chapadeau v Utica Observer-Dispatch, 38 N.Y.2d 196, 200; Trails West v Wolff, 32 N.Y.2d 207, 221, supra; Gilberg v Goffi, 21 A.D.2d 517, 527, affd 15 N.Y.2d 1023; Bandelin v Pietsch, 563 P.2d 395 [Idaho, 1977].) After a thorough review of the extensive record compiled in this case, we are of the view that plaintiff has failed to establish the existence of triable issues, which, if resolved in his favor, would warrant a finding of libel liability. The defendants' motions for summary judgment should have been granted.
With reference to the dissent, it should be noted that the rule of the Times case is not to be applied woodenly or mechanically. The principles established in New York Times Co. v Sullivan and developed in subsequent cases, represent significant protections for the lifeblood of a free, fair, responsive and responsible press. To be independent of political influence, to inform the reading public on matters of concern and interest, and to perform its important, yet informal, task, especially valued in this decade, of light-shedding on the activities of government officials, the press must be safeguarded from crippling libel suits, brought to punish those who exercise free speech and to deter others, by chilling the atmosphere, from expressing disagreement in public forums. To be sure, the standards enunciated in the Times case are strict. But laxity is not permitted here, because under Federal constitutional principles, loose rules and only casual judicial review with a bias toward the tort plaintiff would hamper the operations of the free press. Judge J. EDWARD LUMBARD has stated the guiding principles well. "These strict tests may sometimes yield harsh results. Individuals who are defamed may be left without compensation. But excessive self-censorship by publishing houses would be a more dangerous evil. Protection and encouragement of writing and publishing, however controversial, is of prime importance to the enjoyment of first amendment freedoms. Any risk that full and vigorous exposition and expression of opinion on matters of public interest may be stifled must be given great weight. In
In response to Judge FUCHSBERG'S concurring opinion, only two comments are necessary. It is totally unwarranted to suggest that, somehow, judicial immunity from libel suit bears on, or relates to, the imposition of a constitutional burden of proof on a Judge who brings a libel action. Quite apart from whether the statements of Judges should be privileged, which is a matter of State law, Judges are public officers to whom the Federal constitutional decision in New York Times Co. v Sullivan is applicable. This is the point of the majority opinion. To the extent that it misses the point, the concurring opinion reflects a misunderstanding of the constitutional law of libel.
Secondly, the comments made in the same concurring opinion with respect to the desirability of increasing the effectiveness of the legal profession in rising to the defense of allegedly falsely maligned Judges are expressly disapproved. Whether the organized legal community should develop rules to govern the question of protecting Judges from assertedly unfair criticism is a matter for the legal community itself to resolve. It would be tasteless and inapt for our court as an institution, or for any one of us, to express any view on this matter at this time, much less approvingly cite proposed rules only recently put forward for discussion purposes. Finally, we have no doubt that the profession will, as it has always done, rise to the defense of reputable Judges falsely accused in the public press. Indeed, in this case, two different bar associations studied the matter and publicly supported the plaintiff. The honorable will be doubtless defended; only those whose conscience is stained need fear.
To conclude, the Supreme Court has required that a libel plaintiff who is a public official must carry a constitutional burden of proof with convincing clarity. On this record, we cannot say that there are triable issues of fact, which if resolved in plaintiff's favor, would permit a jury to conclude that the constitutional burden of proof by convincing clarity has been satisfied.
Accordingly, the order of the Appellate Division should be reversed and defendants' motions for summary judgment granted. The question certified by the Appellate Division is answered in the negative.
I concur in result and subscribe to the opinion of Judge JASEN. I do so however on the constraint of the controlling Supreme Court cases which at this time place undue burdens of proof on the defamed, whether public officials or private persons injected into the arena of public interest. For an illustration, I find it virtually impossible to bear the burden of proving that one is not "corrupt" or "probably corrupt". Moreover, ordinarily, the test of clear and convincing evidence of malice would be one addressed as an evidence-weighing standard for fact finders to follow rather than a standard applied as a matter of law on summary judgment. Yet the present state of the law as declared by the Supreme Court makes necessary the implications and analysis cogently drawn by Judge JASEN. Consequently, I vote to reverse and grant summary judgment in accordance with the majority opinion.
While joining the decision to reverse, I believe some additional comments about the position of a Judge who is unfairly maligned are in order.
To discourage possible inhibition of the vigourous, forthright and independent performance of their official duties, Judges, in our society, are afforded an absolute immunity from any suit arising therefrom (e.g., Pierson v Ray, 386 U.S. 547). The existence of such an immunity, though not rooted in constitutional principles alone (Yates v Lansing, 5 Johns 282 [KENT, Ch. J.], affd 9 Johns 395), renders the role of public criticism of the judiciary all the more critical. If anything, it emphasizes the fact that Judges are entitled to no exemption from the virtually absolute protection accorded by the First Amendment to public expression regarding public officials generally. It is generally agreed that one of the supporting pillars of our society, perhaps more so now than when life was less impersonal, is the rigorous enforcement of this right.
Thus, assuming that the defendants' comments about Judge RINALDI were, as he painstakingly points out, one-sided, inaccurate and unfairly damaging, the remedy, as with so much other false or unwise speech, has to be "more speech, not enforced silence" (Whitney v California, 274 U.S. 357, 377 [BRANDEIS, J., concurring]). None of us can be unsympathetic to the real anguish that unwarranted attacks can engender. But public need outweighs personal considerations.
Perhaps the answer lies in Judges themselves. We must
I respectfully dissent as to the grant of summary judgment in favor of the defendant Jack Newfield. As the majority quite properly observes, the charge that plaintiff is "probably corrupt" is a statement of fact and not an expression of opinion.
It must be concluded that Newfield's additional characterization of the plaintiff as "suspiciously lenient" is libelous per se for, even as states the majority, "we have no doubt that the complaint states a good cause of action for libel per se" since it is the law that: "`[a]ny written or printed article is libelous * * * if it tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace'" (p 379). Indeed, the majority concedes that the characterization of plaintiff as "suspiciously
This brings me to the crucial issues in this case: whether plaintiff's cause of action against defendant Newfield may survive a motion for summary judgment on the issue of actual malice.
In conclusion, it should be emphasized that this case presents a delicate and difficult dilemma. We are profoundly committed to a strong and free press especially in the area of political debate and critique of government, even to the extent that a certain degree of harm to the reputation of public officials will be permitted in order to preserve the unimpeded flow of information to the public and to prevent the muffling of the critic's voice (see Time, Inc. v Pape, 401 U.S. 279, 290-292; New York Times Co. v Sullivan, supra, p 279). Indeed, our society is probably unique in its tolerance of sharp and robust criticism of public officials and government. On the other hand, however, we are equally committed to individual rights and in particular to the guarantee that one is presumed innocent until proven guilty in accord with the mandates of due process of law (US Const, 14th Amdt). Situations arise when these rights come into conflict. The task of balancing the competing interests may not be shirked by the ritualistic incantation of the rule of New York Times Co. v Sullivan (supra), as the majority concedes. Rather, the balancing must be achieved by a painstaking examination of the particular facts of each individual case in which the rights of the press and the rights of the individual are counterpoised. Newfield may entertain and express whatever opinion he may have concerning plaintiff's judicial abilities and his performance of the duties of his office. His right to do so is the very essence of the First Amendment. However, to state that a public official is guilty of illegal conduct without any factual basis whatsoever or with a knowingly inadequate foundation to support
Order reversed, with costs, and appellants' motions for summary judgment granted. Question certified answered in the negative.