61 Misc. 2d 309 | N.Y. Sup. Ct. | 1969
Defendants, Little, Brown & Company, and the Literary Guild of America, Inc., move for an order dismissing the complaint pursuant to CPLR 3211 (subd. [a], par. 7) on the ground that it fails to state a cause of action. In this libel action, plaintiff corporation avers that the defendant publishers (movants herein) and the defendant author published false and libelous matter by asserting that the plaintiff went out of business and into oblivion, in the book entitled “ The Arms of Krupp 1587-1968” (see pp. 844, 824 and 967 of said book). Defendants contend that the complaint fails for' not setting forth ‘ ‘ actual malice ’ ’ in connection with the publication of the alleged libelous matter. Plaintiff, to the contrary, submits that there is no requirement that actual malice be alleged under the circumstances herein, and alternately, that if there is such requirement, it has been sufficiently met by the allegations of the complaint.
Perusal of analysis of the philosophy of Dr. Alexander Meiklejohn as it.relates to the United States Supreme Court decisions in this area confirms that it is basically ‘ ‘ issue ’ ’ oriented (Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1 (1965); Meiklejohn, The First Amendment Is an Absolute, in 1961 Supreme Court Review 245). Reduced to elementáis, Professor Meiklejohn’s view is buttressed on the thesis that the citizens of the United States are not only “ the governed ”, but also “ the governors ”. A portion of their sovereign power is delegated to the government. The First Amendment protects against abridgment of the freedom of the electoral power retained, among others, by the people. Concomitant with and •corollary to the governing power of the citizenry is the requirement of unrestricted public discussion of public issues.
Subsequent to Hill it appears that the Supreme Court returned to what is essentially a 11 person ’ ’ oriented rationale (see Curtis Pub. Co. v. Butts and Associated Press v. Walker, 388 U. S. 130 [1967], utilizing a “ public figures ” rather than “ public issues ” approach).
Without speculating on the apparent conflicting rationale of the post New York Times cases, this court recognizes that the exercise of the right of free speech and free press demands and even mandates the observance of the coequal duty not to abuse such right, but to utilize it with right reason and dignity. Vain lip service to “ duties ” in a vacuous reality wherein “ rights ” exist, sovereign and independent of any balancing moral or social factor, creates a semantical mockery of the very foundation of our laws and legal system.
In the application of pertinent legal reasoning and principles to individual factual circumstances in this area of the law where a state of flux patently prevails, the. court must be mindful of needless extension of a “rule”. The expansion of one right tolls the confinement of another in the delicate balancing of private as compared or contrasted with public issues and/or persons.
Finally, even assuming that the New York Times rule applied to the action herein, the court is of the opinion that the plaintiff has properly pleaded actual malice. Paragraph “12” of the complaint states: ‘ ‘ Publication of such matter of and concerning the plaintiff was wanton and reckless to an extent amounting to malice, and was made with reckless disregard of whether such matter was false or not, and at the time of such publication the defendants knew, or could have ascertained, that the matter so published of and concerning the plaintiff was untrue.”
Whether the defendants acted with actual malice is a question of fact. Plaintiff need not plead the facts upon which the proof of actual malice can be based; he need only plead actual malice itself Cabin v. Community Newspapers (50 Misc 2d 574, affd. 27 A D 2d 543 [2d Dept., 1966]); see Dulberg v. Mock (1 N Y 2d 54, 56; CPLR 3013). Accordingly the motion is denied.