FRIENDLY, Circuit Judge:
In this action in the District Court for the Southern District of New York, 486 F.Supp. 368,
The cover of the July 24, 1978 issue of New Times bore a photograph identified as "Vincent `Buddy' Cianci Mayor of Providence, R.I." and a legend reading:
The article itself carried a headline in large and heavily blacked type:
WE HARDLY KNEW YA
followed by five lines, also in bold face and larger than normal type:
The article stretched over seven pages. Interspersed with the text were four boxes, also in bold face and larger than normal type, highlighting passages from the article. One of these inner headlines asserted:
After some preliminaries, the article quoted liberally from a statement allegedly made by Redick to the article's author in 1978, relating in detail what she claimed to have taken place on the evening of March 2, 1966. In summary, she reported that while she was walking home from work in Milwaukee, Wisconsin, she was picked up by a man, subsequently identified as Cianci, driving a big black car. Cianci called her by name, stating that he knew a friend who worked with her, and asked if she wanted to do some part-time work for the Marquette Law School, where he was a student. Redick's first reaction was negative; she said she had to go to the studio club where she resided and change her clothes. While doing this, she changed her mind and so informed Cianci who had sat in his car for half an hour while she was in the studio club. The two took off in the car. When Redick asked why the journey to the office was taking so long, Cianci answered that his office was in his home in River Hills, a suburb of Milwaukee. The house did contain an office "like a study or den . .". Cianci offered her a drink, "a rum and Coke", which she accepted. Afterward she felt "like I was drugged." Cianci then "started coming toward me, and trying to kiss me and trying to make out with me." After some conversation Cianci pulled her into the bedroom; Redick countered with a threat to call the police. Cianci then threatened her with a gun, taken from a drawer in a nightstand by the bed, and also threatened to throw her into a ravine outside the window. As the article quoted Redick, "I couldn't fight him off any longer ... and he raped me." Ultimately, when Cianci went to the bathroom, Redick called a cab. When the driver arrived, Cianci "acted very cool", saying "We had a wonderful time, and I'll call you ... We'll go out to dinner sometime."
After passing out at the studio club and then sleeping there, Redick told the story to an unidentified friend. The police were notified. Redick went to the police station at River Hills, was examined by a physician with unstated results, spoke to the police, filed a written complaint and "was grilled
The State Crime Laboratory reported the finding of a pistol in operating mechanical condition and of three empty glasses which were examined for drug residue with negative results.
The article continued to state as a fact that Redick took the lie detector test and passed, whereas Cianci took it three times and failed each time. This was followed by a quotation from a report by Harold Block, a River Hills police lieutenant in 1966:
The article proceeded with a statement by Redick that her attorney did not think she was well enough to go on with the case and told her "to drop the charges and settle out of court." It quoted her as saying she had received a settlement of $3,000 and went on to state that she withdrew her complaint and a decision was made that Cianci would not be charged sometime prior to June 29, 1966.
The article then moved back to 1977, when a young Providence reporter went to work for a Milwaukee television station. She met one Alan D. Eisenberg, a controversial Milwaukee lawyer who had been a law school classmate of Cianci. Eisenberg allegedly had acted as a procurer of women for Cianci and had thought him to be the possible rapist described in a March 5, 1966 story in the Milwaukee Sentinel. Eisenberg said that, when he talked to Cianci, the latter replied that the report was "a shakedown" and he was having a local lawyer handle it. Eisenberg led the reporter to Block, who had become River Hills Chief of Police. He furnished them with a copy of what they believed to be Cianci's complete police file. Eisenberg and the reporter located
After recounting the refusal of the Milwaukee and Providence television stations to broadcast the story, the article went on to tell how a female acquaintance of Eisenberg brought the story to the attention of several friends in the media. She found a receptive audience in Bert Wade, a reporter for the Providence Journal who, with a colleague, flew to Milwaukee, had dinner with Eisenberg and spoke to Block. They discovered that the police file was no longer available; Redick's attorney explained that the records were legally required to be destroyed at the complainant's request. Although the writer of the article later ascertained from Redick's lawyer that this had been requested, the article states, apparently quite gratuitously: "(The police file may, in fact, have been sealed by the village attorney, and not destroyed)." The reporters "checked out leads and sources — the district attorney, the Milwaukee County medical examiner, the dean of Marquette Law School, Robert F. Boden." They then made plans for their story to be published on page one of the Sunday Providence Journal. Cianci declined to meet with a city hall reporter for the Journal, but a meeting was held between Cianci and his advisors and two editors and the paper's attorneys at which the former group claimed that Wade had made some demonstrably false accusations against Cianci in order to coax information from Dean Boden
After plaintiff had answered interrogatories and submitted to deposition
The district court granted the motion in an opinion. This began by saying that the article was not defamatory since it "carefully refrains from stating that Cianci was indicted, officially charged, or guilty of the crime of rape as claimed by Redick. Nor does the article ever state that Cianci paid Redick $3,000 as part of an agreement to drop criminal charges". The court disparaged the defamatory effect of what would seem to be statements of fact as "slender indeed". However, what the court found decisive was "not the mere absence of a defamatory connotation in the article" but that "to whatever extent the article implies that Cianci was guilty of rape or improper payoffs, such implications are constitutionally protected as expressions of opinion." The court was therefore not obliged to give specific consideration to the alternative defense of neutral reportage.
Plaintiff freely concedes that his case is subject to the principles laid down in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). As a public official and a candidate for public office, see Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971), he can ultimately prevail only if he proves with "convincing clarity" that a defamatory statement "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. We accept also that "as a matter of constitutional law ... a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for office for purposes of application of the `knowing falsehood or reckless disregard' rule of New York Times Co. v. Sullivan," Monitor Patriot Co. v. Roy, supra, 401 U.S. at 277, 91 S.Ct. at 628. We agree further that, whatever may be the situation at common law, see 1 Harper & James, The Law of Torts § 5.20 (1956); Eldredge, The Law of Defamation, ch. 13 (1978), a plaintiff within the ambit of Sullivan has, at least as a practical matter, the burden of proving falsity, since he must in any event establish that defendant published with knowledge of falsity or reckless disregard of the truth. See Herbert v. Lando, 441 U.S. 153, 159, 170, 175-76, 99 S.Ct. 1635, 1640, 1646, 1648-1650, 60 L.Ed.2d 115 (1979); see also K. Sowle, Defamation and the First Amendment: The Case for a Constitutional Privilege of Fair Report, 54 N.Y.U.L.Rev. 469, 475 & n.23 (1979) [hereafter Sowle]. Although forced
I. The article was reasonably susceptible of a defamatory connotation.
The initial question is whether the article is "reasonably susceptible of a defamatory connotation," James v. Gannett Co., Inc., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834, 837 (1976), so as to warrant its submission to a jury to determine if in fact the defamatory connotation was conveyed. Restatement, Second, Torts, § 614. The allegedly defamatory passages must be considered in the context of the entire article and the words taken as they are commonly understood. Id. § 563. The article was capable of bearing a defamatory meaning for two reasons: it contained explicit statements and fair implications by the writer which could be considered defamatory, and it also republished defamatory statements made by others, for which a defendant, unless protected by a privilege, is as liable as if he had made the statements himself.
Our summary of the article has revealed many instances where defendants could be found to have made charges of criminal conduct on their own responsibility. We start with the words of the headline:
WE HARDLY KNEW YA
A jury, considering this in light of the article as a whole, could surely conclude that New Times was saying that Mayor Cianci, instead of being the man of character he represented himself to be, was in fact a rapist and an obstructor of justice — not simply a person who had been accused of being such.
Beyond this the organization of the section of the article relating the circumstances of the decision not to prosecute Cianci and the $3,000 payment is also reasonably susceptible of a defamatory connotation. According to the complaint and evidence developed by the plaintiff, the defendants knew that the decision not to prosecute Cianci was made prior to and independent of any settlement between Cianci and Redick. Yet the organization of the article, for which the defendants alone are responsible, strongly implies that the payment was prior to and was the primary reason for the decision not to prosecute. The section begins by surveying the items of evidence in the police file, and moves on to quote Lieutenant Block as saying "When you think you have enough, you send it up to the D.A. Then you hope for justice." This clearly refers to a possible criminal prosecution. The article then immediately moves to discuss the $3,000 settlement, never suggesting that it was made after the withdrawal of the criminal complaint and after the decision not to prosecute had been reached. Then the article returns to discuss the decision not to prosecute Cianci criminally. The clear implication, or at least one which a jury could find, was that the $3,000 payment was made prior to the withdrawal of the complaint and the decision not to prosecute and, particularly when read in connection with the rest of the article, that it was a payoff designed to affect these decisions.
The second point is even plainer. A federal court has recently referred to the "black-letter rule that one who republishes a libel is subject to liability just as if he had published it originally, even though he attributes the libelous statement to the original
II. The article is not protected as a statement of opinion.
Despite this the judgment should stand if the district court was right in holding that the article was protected as an expression of opinion. In support of this conclusion the judge quoted a passage from Justice Powell's opinion for the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789 (1974), which has become the opening salvo in all arguments for protection from defamation actions on the ground of opinion, even though the case did not remotely concern the question:
Justice Powell's very next sentence, however, was that "there is no constitutional value in false statements of fact." The alleged libels in Gertz, which were deemed sufficiently "factual" to support an action for defamation, included an "implication
The other Supreme Court cases cited as creating a constitutional exception for statements of opinion, Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), and Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), are equally inapplicable to this case. In Greenbelt a newspaper was sued for republishing a speaker's comment at a city council meeting that plaintiff was "blackmailing" the city in connection with pending negotiations. Justice Stewart wrote for the Court that no libel had been committed because no one who read the account would have considered that the plaintiff was being charged with the crime of blackmail. The word was "no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable." 398 U.S. at 14, 90 S.Ct. at 1542. The clear implication is that if an accusation of actual criminal wrongdoing had been conveyed, e. g., a statement that Bresler had threatened a councilman with exposure of an extramarital episode unless he voted Bresler's way, it would have been held actionable, unless within a privilege of fair reportage of public proceedings discussed below. See the state court opinion, 253 Md. 324, 252 A.2d 755, 769 (1969).
In Letter Carriers v. Austin, supra, the Court relied on Greenbelt in holding that no one could reasonably understand publication of a well-known definition of a "scab", attributed to Jack London, as a "traitor to his God, his country, his family and his class", as charging the crime of treason. The words were protected because defendants were using them "in a loose, figurative sense ... merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members to those who refuse to join." 418 U.S. at 284-86, 94 S.Ct. at 2782-83.
This court's first relevant post-Gertz discussion of the distinction between statements of fact and of opinion was in Buckley v. Littell, 539 F.2d 882 (1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). The court there examined three alleged libels which the district court had found to have been perpetrated on William F. Buckley, Jr., admittedly a "public figure". The first was that Buckley was a fellow traveler of the fascists, as Buckley interpreted the term, or a fellow traveler of the radical right or the right wing. This court held that the use of such expressions "cannot be regarded as having been proved to be statements of fact, among other reasons, because of the tremendous imprecision of the meaning and usage of these terms in the realm of political debate, an imprecision which is simply echoed in the book." Id. at 893. The second asserted libel was what
In sharp contrast to these rulings with regard to "loosely definable, variously interpretable statements of opinion ... made inextricably in the contest of political, social, or philosophical debate", id. at 895, was the court's treatment of the statement:
This was considered to be a defamatory assertion of fact namely, that Buckley had made false and libelous statements. After repeating the contrast drawn in Gertz between expressions of "pure opinion" and "false statements of fact", the court held the statement was actionable because "the clear meaning to be inferred was that he considered Buckley to be a libeler like Pegler." Id. at 896 (emphasis supplied). Since surely this was a statement of Littell's opinion, our decision must mean that when an "opinion" is something more than a generally derogatory remark but is laden with factual content, such as charging the commission of serious crimes, the First Amendment confers no absolute immunity, as distinguished from the qualified protection accorded by Sullivan in the case of public figures. And the court did not rest its decision at all on the basis that Littell implied he had reasons for believing Buckley to have been a libeller and defamer other than those disclosed in his articles.
No departure from this ruling was made by Hotchner v. Castillo-Puche, 551 F.2d 910 (2 Cir. 1976), cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). The uncomplimentary references to Hotchner there at issue, such as that of being a "toady" and a "hypocrite", were of a most general and imprecise sort, see id. at 912. It was in this context that the court said, citing Gertz and Buckley, id. at 913: "A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be."
The highest courts of our two largest states have reached conclusions in accord with this court's analysis in Buckley. In Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977), plaintiff, a state court judge, charged defendants with libel in writing and publishing a book which charged the judge with being corrupt and incompetent and advocated his removal from office. The court ruled that the charge of incompetence and the advocacy of the judge's removal were protected as statements of opinion, but the charge of corruption was not:
The principle of the Greenbelt-Letter Carriers-Gertz trilogy, of our own Buckley decision, and of the New York Court of Appeals decision in Rinaldi is (1) that a pejorative statement of opinion concerning a public figure generally is constitutionally protected, quite apart from Sullivan, no matter how vigorously expressed; (2) that this principle applies even when the statement includes a term which could refer to criminal conduct if the term could not reasonably be so understood in context; but (3) that the principle does not cover a charge which could reasonably be understood as imputing specific criminal or other wrongful acts.
It is clear from the foregoing that even if the article were to be read as only expressing the "opinion" that Cianci committed the crimes of rape and obstruction of justice, it is not absolutely protected as distinguished from the protection afforded by Sullivan. The charges of rape and obstruction of justice were not employed in a "loose, figurative sense" or as "rhetorical hyperbole". A jury could find that the effect of the article was not simply to convey the idea that Cianci was a bad man unworthy of the confidence of the voters of Providence but rather to produce a specific image of depraved conduct — committing rape with the aid of trickery, drugs and threats of death or serious injury, and the scuttling of a well-founded criminal charge by buying off the victim. Such serious charges have not yet become "undefined slogans that are part of the conventional give-and-take in our economic and political controversies." Cafeteria Union v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 127, 88 L.Ed. 58 (1943). To call such charges merely an expression of "opinion" would be to indulge in Humpty-Dumpty's use of language. We see not the slightest indication that the Supreme Court or this court ever intended anything of this sort and much to demonstrate the contrary.
Defendants also argue that any implied opinion conveyed by the article is protected because it set forth the facts which, in their view at least, supported this opinion. Restatement, Second, Torts § 566 states:
As acknowledged by the reporter, § 566 is the result of combining the limited constitutional protection of opinions and ideas surveyed above and the common law privilege of fair comment. See Wade, The Communicative Torts and the First Amendment, 48 Miss.L.J. 671, 694-95 (1977).
Our holding that the article was not within the constitutional protection for false ideas requires us to consider whether it may nevertheless have been protected by the common law privilege of fair comment. While the Court said in Sullivan, 376 U.S. at 292 n.30, 84 S.Ct. at 732 n.30:
defendants are not aided by this at the present stage of the case since plaintiff has not yet had his opportunity to prove actual malice. The question thus is whether defendants made a showing of being within the common law privilege sufficient for the
The common law privilege of fair comment applied only if the disclosed facts were true or privileged. Restatement, First, Torts § 606; Gatley, Libel and Slander 325-31 (6th ed. 1967). Here plaintiff alleges that the article is replete with misstatements of fact. The issue of truth is surely not ripe for summary judgment, and we hold below, in Part III of this opinion, that not all the reported facts were protected by a constitutional privilege of neutral reportage or the common law privilege of fair report. The privilege of fair comment was also lost if the comments were made with malice, in the common law sense of spite or ill-will. Restatement, First, Torts § 606, comment d. Although such ill-will is not directly implicated on the constitutional question under Sullivan, see Rosenbloom v. Metromedia, 403 U.S. 29, 52 n.18, 91 S.Ct. 1811, 1824 n.18, 29 L.Ed.2d 296 (1971) (plurality opinion), it would remain pertinent to this distinct common law issue, and plaintiff's complaint alleges it more than adequately.
Moreover it is unlikely that an expression in the form of "I think Cianci raped Redick at gunpoint" would be considered a "comment" so as to come within the fair comment privilege. It is far from the usual sort of evaluative judgment with which the privilege has traditionally been concerned. Contrast Restatement, First, Torts § 607, illustration 1 (police chief unfit for office); illustration 2 (magistrate criticized for fixing high bail); illustration 3 (quality of work by contractor on public streets criticized); illustration 4 (European dictator criticized for acts which impair world peace). The problems with an extension of the privilege of fair comment to include specific allegations of fact were articulated long ago and have not lost their validity:
In Professional & Business Men's Life Ins. Co. v. Bankers Life Co., 163 F.Supp. 274 (D.Mont.1958), the court sustained an action based on a notice which warned those approached by insurance salesmen making seven specified representations to contact the state insurance commissioner. The notice implied the opinion of dishonest business practices, and "a suspicion, belief, or opinion is as effectively a libel as though the charge were positively made," even though the basis for the opinion, the seven representations, was disclosed. Id. at 287 (quoting Woolston v. Montana Free Press, 90 Mont. 299, 2 P.2d 1020, 1022 (1931)). In Venn v. Tennessean Newspapers Inc., supra, 201 F.Supp. at 56, defendant newspaper published the comments of others linking plaintiff with underworld figures. The defense of fair comment was not allowed. "The libellous imputations and statements ... are unadulterated imputations and statement of fact and by no stretch of the imagination could they be classified as comments or expressions of views or opinions ...." As indicated by Buckley, Rinaldi, and Gregory, supra, the more recent cases are in accord with the view that charges of specific criminal misconduct are not protected as "opinions". See also P. Keeton, Defamation and Freedom of the Press, 54 Tex.L.Rev. 1221, 1254 (1976) (arguing that when fault with respect to the truth or falsity of the defamatory matter
Further, the common law privilege of fair comment does not here apply because the disclosed facts and any implied opinion are inextricably intertwined in the accused article. The reader is not presented with facts and a separate inference therefrom; rather the opinion is conveyed as part and parcel of the factual disclosures. See Gatley, supra, at 324; Luster v. Retail Credit Co., 575 F.2d 609, 616-17 (8 Cir. 1978) (credit report detailing certain facts could be read as charging the plaintiff with arson and is actionable). In such a case it is meaningless to say that the opinion is protected, when the facts are not.
III. The article is not protected by a constitutional privilege of neutral reportage or the common law privilege of fair report.
We are thus obliged to consider the second ground of the defendants' motion, see text accompanying note 8 supra, which the district court did not reach, namely, a claim that the article is protected by a different constitutional privilege, generally called the privilege of neutral reportage.
The common law has long recognized a privilege of fair report of public court trials, see Curry v. Walter, 126 Eng.Rep. 1046 (C.P. 1796). In the United States this privilege was extended to accounts of public legislative, executive and administrative proceedings, see Sowle at 471-73 and accompanying notes, the rationale being that since any member of the public could have attended the proceedings or read the reports, the media were simply acting as its agent. How far the privilege extended beyond public proceedings and reports was unclear. There was, for example, a difference of opinion how far the privilege covered police investigations and reports, see Eldredge, supra, § 79 at 434-36, Sowle at 473 & n.12, and the general rule was that the privilege did not include non-public judicial proceedings, Eldredge, supra, at 436-38, or a complaint on which no official action had been taken, see Restatement, Second, Torts § 611, comment e, at 300.
While the Supreme Court has not yet addressed the question of the existence of a constitutional privilege of neutral reportage, going beyond that generally recognized at common law,
Regarding this publication as in itself a newsworthy development in the course of
"Having thus in good faith elicited both sides of the story to the best of his ability," id. at 118, Devlin then published a story in the New York Times of August 14, 1972. This was a fair account of what Arbib had written in the Society's report, the names that Arbib had given and a summary of the answers Devlin had obtained.
The jury returned a verdict against the Times and Clement but exonerated Arbib. In an opinion by Chief Judge Kaufman this court reversed the judgment against the Times on the basis of a constitutional report privilege and also on the ground that the evidence adduced at trial was insufficient to demonstrate "actual malice", and against Clement on the ground that he had not been a party to the charge of venality. The decision in regard to the constitutional report privilege has been well received by the commentators, see Comment, Constitutional Privilege to Republish Defamation, 77 Colum.L.Rev. 1266 (1977); Sowle at 527-28, although rejected by the Third Circuit in Dickey v. CBS, Inc., 583 F.2d 1221 (3 Cir. 1978).
As would be natural in a case establishing a new principle, the Edwards opinion did not attempt precise definition of its contours. However, it did contain important suggestions that the privilege was limited in scope and required careful examination of the facts in each case. Examples are the statements that "when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of these charges, regardless of the reporter's private views regarding their validity"; that "[w]hat is newsworthy about these accusations is that they were made"; that "[t]he public interest in being fully informed about such controversies that rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them"; that while "we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made ... [i]t is equally clear, however, that a publisher who in fact espouses or concurs in the charges made by others or who deliberately distorts these statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage" but rather "assumes responsibility for the underlying accusations"; that the Times had "published the maligned scientists' outraged reactions in the same article that contained the Society's attack"; that the article was "the exemplar of fair and dispassionate reporting of an unfortunate but newsworthy contretemps"; and that "[w]e believe that the New York Times cannot, consistently with the First Amendment, be afflicted with a libel judgment for the accurate reporting of newsworthy accusations made by a responsible
The New Times article fulfills almost none of the conditions laid down in Edwards. While, as indicated above, the precise bounds of the privilege remain to be delineated, it is enough for decision in this case that a jury could well find that the New Times did not simply report the charges but espoused or concurred in them; indeed, despite the ingenious construction of the article, more naivete than ought to be demanded even of judges is needed to consider the article as doing anything else. In addition to the instances cited in the second paragraph of Part I of this opinion, the New Times made no mention of Cianci's claim of innocence of the charge of rape, see note 7 supra, save in the backhanded form of quoting Eisenberg's remark that he had called the charge a "shakedown". It said nothing of Cianci's position, see note 4 supra, that the $3,000 was paid in settlement of Redick's contemplated civil suit rather than to induce her to withdraw the criminal charge. Indeed the New Times did not obtain Cianci's version of the facts, although it allowed a lawyer for him to meet with some of its representatives and submit certain papers to them.
The need for the careful limitation of a constitutional privilege for fair reportage is demonstrated by the breadth of that defense, which confers immunity even for publishing statements believed to be untrue. Absent the qualifications set forth by Chief Judge Kaufman in Edwards, all elements of the media would have absolute immunity to espouse and concur in the most
but considered that it must yield to the compelling circumstances arguing for a constitutional privilege of fair reportage in that case. It should not be further eroded to the extent demanded by the defendants here.
There remains the point, not raised by defendants' motion or argued to us, that some portions of the article may be protected by the privilege of fair report as recognized at common law. Considering what law a New York court would apply, see Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), we predict that although the New Times' place of business was in New York, a New York court would apply the law of Rhode Island. See Restatement, Second, Conflict of Laws § 150(2) and comment e.
Unfortunately the cases, whether in Rhode Island or elsewhere, are not settled on how far defendants had a common law privilege to publish some or all of the statements made in 1966; clearly they had none with respect to the purely private statements made in 1977 or 1978. The Restatement would not protect publication of the material in the police file or Redick's original statement to the police, see Restatement, Second, Torts § 611, comment h. This is certainly the rule of the older cases, including one from Rhode Island. See Metcalf v. Times Pub. Co., supra, 20 R.I. 674, 40 A. 864, 866 ("the right of a party to make charges gives no right to others to spread them"); Jastrzembski v. Marxhausen, 120 Mich. 677, 79 N.W. 935, 937 (1899) ("Reports made to police officers charging persons with crime are not privileged communications, and those who publish such reports do so at their peril."); Lancour v. Herald & Globe Ass'n, supra, 111 Vt. 371, 17 A.2d 253, 259 ("We do not regard a preliminary police investigation as a judicial proceeding or the publication of a statement made in the course thereof ... as within the protection of a qualified privilege. Information of this nature given out by the police is not to be considered as a statement of facts developed on a judicial investigation or the statement of a fact resulting from a judicial investigation."). The Metcalf case was cited in Pittsburgh Courier Pub. Co., Inc. v. Lubore, supra, 200 F.2d at 356, for the proposition that "few if any courts would extend the privilege so far as to cover reports of charges made, without results, to a policeman or prosecutor." Some more recent decisions apparently have extended the privilege, although many of these are distinguishable on the ground that there had been official action in the form of an arrest. See, e. g., Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406 (E.D.Pa.1978); Piracci v. Hearst Corp., 263 F.Supp. 511, 515 (D.Md.1966), aff'd 371 F.2d 1016 (4 Cir. 1967). Others may not be so distinguishable. See, e. g., O'Neal v. Tribune Co., 176 So.2d 535, 547 (Fla.App.1965); Stice v. Beacon Newspaper Corp., Inc., 185 Kan. 61, 340 P.2d 396, 400 (1959). Even if the common law would protect republication of the material in the police file and Redick's statement to the police, which we do not decide, this would still leave unprotected the republication of Redick's 1978 statements to the reporter, the entire matter of the obstruction of justice charge, and what a jury might find to be defendants' endorsements of the truth of Redick's claims. Since, as indicated, defendants did not raise the claim of the common law fair report
The judgment dismissing the complaint is therefore reversed and the cause remanded for further proceedings consistent with this opinion.
We stress the narrow character of our ruling, namely that the defendants are not immunized by a constitutional exception for statements of opinion, by the common law privilege of fair comment, or by the constitutional privilege of neutral reportage recognized in Edwards, and that we decline now to decide whether certain portions of the article may be protected by the fair report privilege recognized at common law. We repeat, as we said at the outset, that our ruling in no way relieves the plaintiff from the heavy burden imposed by New York Times Co. v. Sullivan, which indeed might even entitle defendants to prevail on a motion for summary judgment when the discovery in regard to "malice" has been completed. We hold only that the district court was not justified in lowering the boom on Mayor Cianci when it did.
On Suggestion for Rehearing In Banc
A petition for rehearing containing a suggestion that the action be reheard in banc having been filed herein by counsel for the defendants-appellees and said suggestion having been transmitted to the judges of the court in regular active service and to the other judges on the panel that heard the appeal and a poll of the judges in regular active service having been taken on the request of such a judge, and there being no majority in favor thereof,
Upon consideration thereof, it is
Ordered that rehearing in banc be and it hereby is denied.
Noted that Judge Kaufman filed a separate concurrence to the said denial in which Judges Mansfield and Oakes, and Newman concurred.
Further noted that Chief Judge Feinberg took no part in the consideration of said petition.
IRVING R. KAUFMAN, Circuit Judge (concurring), with whom MANSFIELD, OAKES, and NEWMAN, Circuit Judges, concur:
I originally voted to grant en banc reconsideration in this case because of my belief that the panel's opinion might be construed to undermine the neutral reportage privilege enunciated in Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977). Apparently, my colleagues do not read the opinion here as inconsistent with Edwards. I am heartened by this reassurance that Edwards is still the law of this Circuit. Thus, although the panel does not always discuss Edwards in the terms I would have chosen, Edwards survives Cianci unscathed.
I note as well that this case is still in the pre-trial stage. The majority's opinion merely reverses the district court's grant of summary judgment in favor of the defendants and sends the case back for a trial. At the trial, I assume, all factual disputes will be weighed. New Times asserts it tried repeatedly to secure Cianci's version before publishing its story, and made other efforts to verify the charges levelled against him. These are proper areas for evidentiary exploration in the lower court in connection with the application of the Edwards neutral reportage privilege.
The interview with Boden yielded nothing.
Another opinion which cited § 566 with approval, but has no bearing on the instant case, is Mashburn v. Collins, 355 So.2d 879 (La.1977), which involved a detailed adverse newspaper review of the cuisine at a newly opened restaurant. This again was a matter of opinion which would ultimately be resolved by the taste buds. If the review had claimed that the restaurant had used condemned food or was in violation of sanitation laws, the result could and, in our view, should have been different.
A decision which, although not citing § 566 of the Restatement, would be inconsistent with its letter as construed by the district court is Catalano v. Pechous, 69 Ill.App.3d 797, 25 Ill.Dec. 838, 387 N.E.2d 714 (App. Court of Illinois, First District, Second Division, 1978, supplemental decision on rehearing, 1979), holding a statement that "240 pieces of silver changed hands — 30 for each alderman" in connection with the award of a city contract was not within the constitutional exception for statements of opinion. The court relied on our decision in Buckley, supra, 539 F.2d at 896.