*1 COLEMAN, PLAINTIFF-APPELLANT, AARON H. v. NEWARK CO., MORNING A LEDGER CORPORATION OF NEW JERSEY, NEWHOUSE, HOCHSTEIN, SAMUEL I. PHILIP BOWMAN, WALSH, E.W. PAUL TIERNEY AND EDWARD DEFEND ANTS-RESPONDENTS. Argued December Decided March1959. *8 the cause appellant
Mr. Green Harry argued (Mr. Green, Richard F. attorney). F. the cause for Lynch respondents
Mr. John argued Schumann, O’Mara, <&Lynch, Davis attorneys). (Messrs. was delivered by court opinion libel, In this action for returned a jury J. Heher, defendants; is here the case our verdict for .and sua from certification, sponte, plaintiff’s pending appeal *9 the consequent to the judgment Division Appellate Court. Superior
The defendants are the Co., Newark as Morning Ledger corporate “printer distributor” aof daily newspaper styled Newark Star-Ledger, of “wide circulation within and beyond the State of New Jersey”; Newhouse, Samuel I. “publisher” of the Hochstein, “editor”; newspaper; Philip Bowman, W. E. “assistant Paul publisher”; “execu- Tierney, editor”; tive Walsh, Edward “staff writer.” is in complaint two counts. The first charges S3, on October 1953 the “several defendants in con- acting cert” published an edition of the Newark Star-Ledger this which “false and malicious” statement was made of the plaintiff, Aaron EL concerning Coleman: “EX-MARINE LINKED TO ROSENBERG spy’s Monmouth radar aide was roommate McCarthy presses espionage trial officer, suspended FORT MONMOUTH—An ex-Marine from his job Military at the Fort Monmouth radar laboratories in 1949 after Intelligence apartment, may found 43 classified documents in his Rosenberg have been link the direct between the laboratories and the spy McCarthy ring, yesterday. said Sen. McCarthy Rosenberg, man said the at one time roomed with Julius spy, the executed atom and has admitted that several other known keys apartment during had Communists and free access to his time the classified material was there. unofficially The senator added he has conferred with Justice De- partment they brought officials and have decided man can be espionage to trial under act. apartment by Military Intelligence The man’s was raided McCarthy said, and 43 classified documents were found.” It is pleaded named “person Julius as [therein] had Rosenberg been convicted and executed previously as an Russia”; for Communist and that espionage agent these statements thus are “false and published libelous”: (a) found 43 classified “Military Intelligence documents in [plaintiff’s] apartment”; (b) “plaintiff ‘may have been the direct link between the laboratories and the Spy Rosenberg ‘at “plaintiff one time roomed with Ring’”; (e) Julius *10 known that ‘admitted several “plaintiff Rosenberg’”; (d) during his apartment had free access to communists and keys ”; and was there’ the time the classified information Intelligence raided by Military was (e) “plaintiff’s ‘apartment * * * found’”; were documents in 1946 and 43 classified H. Coleman Aaron that the plaintiff and “also the inference for, with, indicted of, or had been guilty charged was the crime of espionage.” in- “has been [thereby]
And it is that plaintiff alleged credit; suffered loss fame and has in his jured name, good and income; mental subjected suffering anguish; was to himself against has been to put expense defending great him; has and will the false been charges brought against his in the future of an to earn opportunity be deprived and radar in which in the of electronics livelihood fields scandal, subjected public he and has been to is proficient; and disgrace.” infamy 9, 1953 the
The second count that on December pleads an edition of the same published concert defendants in which this statement was also “falsely newspaper that plaintiff, made of maliciously” concerning say: to AIDE FACES INDICTMENT FOR “EX-FORT PERJURY McCarthy grand jury giving details to perjury count [f]aces Ex-Monmouth aide McCarthy (R.-Wis.) yesterday WASHI[N]GTON—Sen. moved suspended (N. J.) to have a Fort Monmouth radar scientist cited for perjury jibe testimony given after his denials did not with by spy Rosenberg. executed atom Julius yesterday’s testimony The Red hunter said he would forward Branehport Ave., Long Branch, J., of 42
Aaron Coleman N. to jury grand possible perjury federal here indictments. Roy investigations Cohn, subcommittee, to counsel the Senate said testimony Rosenberg’s ‘direct, while on trial for his is in life flat Rosenberg contradiction’ a denial that to Coleman he knew at Ft. Monmouth. McCarthy transcript testimony then announced of the Coleman n —with a ‘from the grave’ by Rosenberg—will rebuttal to sent Department the Justice ‘with the recommendation that it be sub- grand jury.’ mitted to the Kosenberg among college said Cohn listed classmates with who, subsequent whom be bad contact Aaron ‘Mr. Coleman graduation, I atmet Ft. Monmouth.’ McCarthy ‘testimony grave’ labeled this from the and said it probably perjury.’ wouldn’t ‘be admissible in a criminal action for hearing record, . But he said he would admit which will it Department. be sent to the back for Justice Coleman was called questioning today.” further it And was inferences” these “statements or charged were “false defendants, in fact knowledge were published maliciously defendants and with the intention of is to injuring plaintiff,” say: *11 “there was then a (a) or ‘count’ indictment pending perjury the against the have plaintiff”; “facts to been (b) alleged stated by Senator if would, true, have warranted McCarthy an indictment the against for plaintiff perjury”; plain- (c) tiff “was or have the might been of crime of guilty perjury”; “is (d) plaintiff or was a ‘Red’ a Communist), (meaning or is or was attention a proper subject a of ‘Red hunter’”; and Senator “had in ‘moved (e) McCarthy fact ” to have cited for (the plaintiff) perjury.’
The ad damnum in clause is much essence the same as in the first count.
And there were in allegations each count that plaintiff’s statements, demand for “public a retraction” of the “libelous statute,” in accordance with the had not been met.
The answer admits the in publications question, alleges lack of or information sufficient to knowledge form belief as certain to averments the complaint, of denies “wide circulation the Newark New Star-Ledger] beyond Jersey” [of and the and of libel asserts want of allegations damage, retract,” “in malice and failing pleads, by way of separate defenses, and truth and fair justification, comment, that is to that certain of the say, words made the published not basis of first count “are libelous not and do state based”; a claim which relief be upon may that the words articles, context, in of both and “related to separately matters and to public of interest and concern acts public of a and constituted fair comment based public employee, fact”; facts which were true in substance and in to, constituted, full, words of the articles and “related fair and and impartial of report legislative proceeding and with an were and without malice printed published truth,” honest their intent and pur- belief of and “with the to inform the interest pose per- on matters of public to the welfare safety United States taining America.”
Plaintiff that defendants “did observes the brief count”; the defense truth as to the first plead separately and it is said “the were order issues pretrial and in whether news articles were true substance justified fact whether defendants same according in their the same to law answer as proved required by law; and also whether the news articles constituted fair comment.” news disclosures given purport articles attending
an of the Laboratories at Army Corps investigation Signal Monmouth, Port New Permanent Subcom- Jersey, by mittee on of the Committee on Government Investigations United States Senate Operations acting pursuant Resolution 83d The article of Congress. Senate October first count, made the was subject testimonially R. the chairman Joseph McCarthy, verified Senator subcommittee, as a fair and accurate of an portrayal *12 him made at a by authorized conference public report press “executive held at Port Monmouth an session” following subcommittee; the article of the December in pleaded of count, what is said have been the the second relates pro- held the open public prior day at an hearing ceedings by D. in Washington, the subcommittee C. “there was was below that an official senatorial
It stipulated one of the conducted subcommittees of the investigation Senate,” and that “the subcommittee was States] [United the the Senate in authority under the conducting acting And it was Monmouth conceded that investigation.” Fort Operations prior on Government to 1953 the “Committee the under which member of subcommittee any a rule adopted constituted a quorum purpose of administering oaths”;' and it was “not that would agreed plaintiff raise any about the question of the taken validity testimony or the status of the taken committee with testimony only Senator McCarthy sitting.”
Senator testified in the McCarthy current proceeding he at presided at subcommittee held Eort Mon- hearings and in mouth York in New and November City October 1953, under the of the authority Senate, “sub- concerning version and and that espionage”; the news article of (cid:127)October was an “accurate accurate report,” “very report and summation” what he “told the newsmen who were at present” conference held press day preceding after executive immediately subcommittee; session of the “it said what had on in the session,” gone so doing, he under the acted subcommittee “in authority given executive session of the subcommittee.” The executive ses- sion, said, he “elicit information evidence ox [ed] e., stated in subhead,” facts i. “Monmouth radar aide roommate,” in was the news spy’s article of October declared in the first upon count. There was no evidence contra.
I. count, As first the contention that where, as is said to be the case here, “publication is libelous se, e., i. as matter per law, and the plaintiff is not therein, named but is described and identified defend- ants as the meant, person and readers so testified without and truth dispute, was pleaded, but fair comment and qualified of a (consisting alleged report legisla- were, tive and it proceeding) appeared that the publication was based conference press of Senator McCarthy, and was not a of a report legislative there proceeding,” was error in the refusal to direct judgment “for liability compensatory damages.” count,
As to the second the insistence is that the publica- se, tion also libelous per that “the plaintiff was named *13 not but and truth was therein, pleaded particularity, publi- defendants that broad as the and pleaded as charge, report pro- cation was as the of a privileged legislative not se and per and the “headline was libelous ceeding,” of a of part report defense truth and not a justified by had have and should plaintiff a legislative proceeding,” for and compensatory “liability damages.” judgment that, of action It said in to the cause is as argument said, count, not, just defendants have as in the first pleaded truth,” of fair comment defense of and the defense '“alleged truth”; there unless is that upon “cannot stand it founded words, and defamatory presumption falsity is a words are actionable where the law presumes damage se; and of a communica assumption privileged on per tion, it is defense” “special is suggested in the answer, it not set up be and was proved, “specially defense, as under the second separate a bare conclusion but defendants,” is available to the citing and therefore not Bender, J. & A. v. 90 N. 147 (E. 1917);O’Regan Shaw L. Schermerhorn, 25 J. Misc. 1 Ct. 1946). N. (Sup. v. re character of statements as
And as to the “privileged it that this “is not urged legislative proceedings,” port Senator which McCartlry, an action defamation against he arise that what said was part the issue could a judicial report pro proceeding”; legislative v. Courier only Rogers qualifiedly privileged, citing ceeding Co., “oral statements made Post 2 N. J. 393 and so (1949), concluded, has or after been regular proceeding after room, uttered in has court adjourned, although the court no of a not judicial protected are part proceeding [are] invoked; that “in far as so privilege” [the] concerned, are there was no cer privilege—they headlines v. excess publication,” citing King constituted an tainly Patterson, & L. A. wherein 1887), N. (E. J. may one that is subject held be privileged, it was that “[t]he on that if subject unprivileged a communication law qualifications imposed by restraints and communication be observed.” to be given publicity *14 the question to the jury Coolahan submitted Judge reports were and accurate whether the .“fair publications proceedings,” committee [pleaded] legislative notwithstanding actionable subject of a qualified privilege, an honest malice and without if “made with were in- articles.” The jury as to the truth of the belief the reports on of and comments structed “[a]ecounts are privileged, a or of the legislature of committee of Congress the comments accurate and are provided they substantially and without faith are fair is made in good and publication would which malice,” actual a yet privilege” but “qualified faith,” if “is not made good be defeated the publication in the truth of belief or there is malice or absence “express desire other a thereof,” by or the defendants are “motivated faith than make an and fair report good accurate by jury, an issue resolved at to be large,” measured considerations. given com uttered in a
Defamatory privileged words malice. actionable unless actuated munication are not where is essential to action “A or malicious motive wrong malice, sense, in a the communication is privileged”; “legal libel, an of actions for slander or signifies as ingredient without intentionally, act done more than a wrongful nothing “under excuse”; and a just defamatory publication cause or communication, where the privilege of a pretext privileged excuse, without cause or exist, just is a publication does actionable, a and therefore though and in sense malicious legal motive”; the burden of it made without a malicious be defendant, but where occasion is on privileged proving it estab is for the “to plaintiff the occasion is privileged, were made from an the statements complained lish motive, not for a reason which indirect or improper render them v. Patter King would privileged.” otherwise son, supra. cannot defined in terms that will auto
Malice indirect motive, resolve case. other matically every “[A]ny ” what the law calls finalice.’ Dick a sense of is duty, than Wilton, 419, 427, & 175 Eng. Earl 1 F. F. Rep. son v. context, In this (1859), Lord Campbell, C. J. “malice” is used in the sense of ordinary popular term. “When there has been writing speaking of matter, and the held—and it is defamatory has judge him to decide the the matter is question—that although the occasion it either defamatory on which written or how, spoken is it to consider al privileged, necessary though occasion is the defendant is not privileged, yet permitted to take If the occasion advantage privilege. *15 is it is for and the privileged reason, so some defendant is entitled to the only of the if he protection uses privilege the occasion for that reason. He is not entitled the pro if tection he uses the occasion for some indirect and wrong motive. If he uses the occasion to his or his gratify anger malice, he uses the occasion not for the reason which makes the occasion but for an indirect and privileged, wrong motive”; “malice” is the of a some doing “wrong thing motive”; it means “a in a wrong man’s wrong feeling mind”; and the moment the rules that the occasion judge is the of malice is rebutted the privileged, presumption by and the burden that the defendant did privilege of showing not act “in respect of reason but for privilege, reason, some other and indirect is thrown plaintiff.” Q. Molyneux, 237, Clark v. 3 B. D. 246 (1877). is implied “Malice” the law from an by intentional character, of a publication even the de defamatory though fendant harbored ill will toward the no and enter plaintiff, tained an honest belief of the truth of what he said. King Patterson, Times, v. v. supra; Trenton 17 N. J. Hoffman Misc. 339 Ct. affirmed 125 (Sup. N. J. L. 450 1939), Prosser, & A. v. 4 B. & 1940); Bromage C. (E. 1 C. & P. 475, (1825); Hulton & Co. v. Jones, [1909] 2 K. B. 78 L. J. K. B. 937, affirmed, [1910] C.A. 79 L. J. K. B. 198. But it is that there malice requisite be if a fact is to be overcome. The qualified privilege if the defendant be lost privilege may publishes defama “ mind”; “in the state the word 'malice,’ tion wrong from which has the law of defamation plagued beginning, has been much used in this connection, and it frequently is said that is forfeited if the privilege publication more meaning than fictitious “something 'malicious/ malice5 which is 'legal as for strict lia 'implied5 a disguise bility case any defamation55; “it may unprivileged yet mean less will, than ill desire something or a to do spite, harm for its and, own while there is authority sake/5 “it is the contrary, better and more perhaps generally view accepted that existence of ill will does such “ defeat the necessarily 'malice5 in this sense may privilege55; subject the defendant to if he is liable at punitive damages all; if but is otherwise established privilege by occasion and a the addition of the fact proper purpose, the defendant feels and resentment toward the indignation it55; him plaintiff enjoys will not forfeit defaming always the statement which “[pjerhaps best fits decided cases is that the court will look to the motive or primary purpose which the defendant it would apparently inspired55; seem “the is lost if the is not made publication for the the interest primarily which purpose furthering is entitled if the defendant protection55; is moved “chiefly55 will, “motives of ill or to objective distinct accomplish which in itself is not within the may but legitimate *16 e. retain a he g., to servant is privilege/5 employment, 627—8, ed.), 601, no Prosser on Torts immunity. (2d given alia, Fahr 50 N. J. L. 275 Hayes, inter v. Ct. (Sup. citing, Torts, Restatement, 603. And see 1888). § II.
A communication “made subject- upon any bona fide matter in interest, which has an party communicating in reference which he a if or has made duty, privileged a interest or person duty, having corresponding although which, matter without this criminatory it contains privilege, actionable55; slanderous and the “fundamental would be test and it is the bona communication/5 fides when the it has “full person making privileged knowledge 376
of Muller, its 9 untruthfulness.” Lawless v. L. 99 N. J. Ct. (Sup. 1923). As to the element of faith in rela good Grew, tion belief, and grounds of see Doane v. strength 1915C , 220 171, 620, Mass. 107 N. E. L. A.R. 774 (Sup. Jud. Ct. West, Pecue 1915); 316, v. 233 N. Y. 135 N. E. 515 [1922] (Ct. 2 App. K. B. 1922); 260, British 91 L. J. Ry. B.K. Traffic 824; Co. v. R. C. C. also Hallen, Co., “Character Necessary Privilege the Conditional of Belief for Restatement, in Defamation,” 25 Ill. Law Rev. 865 (1931); Torts, 600-602. §§ above,
As said has defendant at the outset burden of establishing the existence occasion of privileged Prosser, Ibid., for the of “a publication, by proof recog nized or public interest which would private justify words”; utterance of the and whether there was such and the involved matter legitimate .comment of public concern court, are of law for the basically questions to the exercise subject traditional jury’s of function Stover, where the facts are 86 N. J. L. dispute. Savage v. 478 Ct. 1914), affirmed 87 N. J. L. 711 & A. (Sup. (E. 1915); Hebditch v. MacIlwaine, [1894] 2 Q. B. Q. 63 L. J. B. 587.
The rule of or conditional qualified privilege, a person is from for whereby protected defama legal liability words in if tory untrue, fact uttered and without honestly indirect any motive, is founded improper on general welfare society of so new occasions for its application will arise with conditions. necessarily continually changing Lees, Howe C. v. L. R. Adam v. (1910); Ward, [1917] A. C. 309; Telegraph Bedford, v. C. L. R. 632, 656-7 an accommodation of (1934). policy is social and all: political good interests competing individuals, on one protection reputation on the other the the “in hand, collective security terest in the fullest freedom of officials to public make within the their disclosures on matters scope ** *17 Matteo, 171, Barr Ct. duties *.” v. 355 U. S. 78 S. This, 204, L. 179 on 2 Ed. 2d (1957). ground
377 it is “in the interest public should be allowed persons to speak on freely when occasions it is their duty to speak, and to tell all they know or believe, or occasions when on it in necessary speak protection of some or] [self common interest”: and the question is whether occasion has been abused “by it the making opportunity indulging in some private or for spite, the occasion for some using indirect purpose or under the influence of some indirect “ motive”; yet ‘to submit the com language privileged munications to a strict hold and to all excess scrutiny, beyond absolute of the occasion to be evidence exigency of malice would in limit, effect if not greatly altogether defeat, that protection which communications.’ ” Gerhold v. Baker, law throws over privileged [1918] W. N. 368, Man, Bankes, J.,L. Laughton v. citing Bishop Sodor and L. R. 4 C. 508. (1872) P. The restraint freedom upon of speech or would in evil its writing public consequences Ward, 6 outweigh private injury. Huntley v. C. B. Hall, (N. S.) Willes, J.; Bowen v. (1859), Q. B. D. C. J. (1881), Coleridge,
In the occasions of such England include (a) reports of parliamentary from, extracts proceedings; (b) or of, abstracts votes, parliamentary reports, or papers, pro- ceedings published by Parliament; authority in a (c) reports or broadcast newspaper having qualified to certain privilege, according statutory Gatley regulations. on Libel and 195, 287-288, Slander 322-324. (4th ed.),
A “malicious, is deemed defamatory publication unless it is made in the fairly by a of some person discharge or whether private moral, or dutjr, or legal affairs, conduct of his own where matters his interest cases, is concerned. In such the occasion in prevents the malice, ference of which the law draws from unauthorized communications, and affords a defence qualified depending the absence of actual If malice. warranted fairly reasonable any exigency, honestly made, occasion such communications for the protected are common con venience and welfare of and the society; law has not restricted
378 the right to make them within narrow limits.” Too any v. good 1 & Spyring, C. M. R. 149 1044 180, 193, Eng. Rep. Parke, (1834), B. has state This been termed “classic a Morrison, ment of the law of Robb v. N. W. privilege.” 20 S. 163, St. 10 Rep. B. R. C. 298 (1920).
The reason for occasion is any holding privileged “common convenience and welfare of and it is obvious society, that no definite line can be so drawn as mark off with precision those occasions which are and privileged, separate them from Q.2 B. 341, 346, those which are not.” Stuart v. Lindley, L. J. There are occasions “on Bell, [1891] which a qualified from in privilege arises or common duty terest, self-defence”; or and comments matters on “[f]air interest” public are sometimes treated aas distinct class Slander, of privileged communications. on Libel and Odgers 206. ed.), (6th Eeports are parliamentary proceedings law; at common fair privileged every and accurate report of any in either House Parliament, in proceeding any or thereof, committee is even it contain privileged, though Ilid., matter of an defamatory individual. “An 269. occasion is when the who privileged person makes the com munication has a moral make it to the duty person to it, whom he does make the person and who receives it has an interest in it. Both these hearing conditions must exist in order that the occasion may be Pullman privileged.” v. Hill & Co., [1891] Q. B. 524, 528. And see Watt v. Longsdon, [1929] 1 K. B. A. L. R. 1005 (C. A.). The Law Eeport Committee on the of Defamation presented by Lord Chancellor to High Parliament in did October 1948 not recommend any the common-' change law rule of wherever the “qualified privilege” person pub- statement under defamatory to, “is a lishing duty in, it, has interest and each an publishing person to whom it is a published has or interest corresponding duty it,” a deemed of doctrine “vital receiving everyday im- to all members of the community,” and portance branch had the law of defamation which evoked little or no criticism.
Thus, it is if is concerned the occasion privileged interest; with matters materially affecting public principle applicable reports legislative fortiori public security. proceedings involving Ibid., the idea Prosser, Dean “rests says privilege, that- if he were any present, might member of public, himself, see for reporter merely substitute *19 all the extends to eye”; this public “privilege reporting of com the legislative investigations proceedings, including councils, and and mittees the of municipal deliberations the the of executive or administrative officials of to acts national, their state municipal governments, or including it the and But is of reports official communications.” accurate, the that the be fair and essence of report privilege comment, be as to fact and and comment itself may both affects “subject because the of the proceedings privileged the interest.” public Torts, Restatement, 611, is that
The rule in the given § a the extends to the “proceedings qualified privilege or an executive officer of or administrative body legislative thereof, or States, a munici- the State or Territory United a law to by perform of a corporation empowered or pal body and the contains false publication duty,” although matter, it is and complete if accurate (a) defamatory not made (b) fair of such proceedings, abridgment the de- harm to person for solely purpose causing famed; and is there commented (a) privilege it for the solely “if the is published purpose is lost report not for the purpose informing other and defaming from the usual condi- and the “differs privilege the public,” even in that it affords protection though privilege tional is known to be false.” reported statement the defamatory Green, 239, in Leers v. 24 J. this, In as was said N. have the essence of freedom of very “we 254 (1957), Constitution, 1947 secured State by of press speech I, 6, 'responsible actor paragraph holding Article Constitution, from the 1844 (derived abuse of that right/ the Birst Amendment also I, paragraph 5) Article 380
to Pederal Constitution.” The “instruments of com- munication, such as the are themselves newspaper, privileged to aid in the publication, wherever the in fact privilege Prosser, exists.” 626.
We are not concerned here with the absolute
privilege
publish
matter without
defamatory
regard
purpose
act,
or motive or the reasonableness of the
but rather
which
privilege
conditions
immunity upon
absence
of the indirect or
motive
improper
which constitutes actual
malice, an
fact
inquiry of
which is
the province
peculiarly
Restatement, Torts,
See
Jury.
618, 619. And it
§§
is not
requisite
act done within the
scope of
it
official
if it
authority;
be done
enough
“an officer ‘in relation to matters committed
lawby
to his
"
”
control or
or that
supervision/
it have
‘more or less
connection with the
matters committed by law to
general
”
Ickes,
his control or
Glass
supervision/
3,
v.
73
D. C.
App.
117 F. 2d
278
C. Cir.
1940),
(D.
holding
press
Vilas,
release
v.
absolutely privileged,
Spalding
citing
S.
S. Ct.
40 L.
U.
Ed.
Cooper
(1895);
*20
O’Connor,
v.
69
99
100,
135,
D. C.
F. 2d
118 A. L.
App.
R.
Matteo,
1440
C. Cir.
And see Barr
(D.
1938).
v.
103 U. S.
176,
D. C.
256
890
App.
F. 2d
Cir.
(D.
1958), also Barr
C.
Matteo,
v.
355
171,
U. S.
78
Ct.
2 L.
204,
S.
Ed. 2d 179
(1957),
between absolute
distinguishing
qualified
and
privi
defamation uttered
an
lege immunizing
officer of the
Government in the form of
release
press
to matters
relating
-
committed
his
control or
Chatterton v.
supervision; also
Secretary
Esher, M.
R.;
State
Mellon v.
for
India,
Brewer,
[1895]
57
App.
2
Q.
D.
B.
C.
126,
189,
18
Lord
F.
168, 53 A. L.
2d
R. 1519
C. Cir. 1927), certiorari denied
(D.
28,
275
48
72
U. S.
S. Ct.
L.
Tilles
(1927);
Ed.
Co.,
v. Pulitzer Pub.
241 Mo.
It cannot be that evidence adduced and information in the course of session of a acquired an executive Congres sional sealed dis committee are investigating against public closure for all communications time save as unprivileged risk suit the members of the committee to the subjecting like, and civil slandeT and the personal libel and liability even are made in what the com though publications mittee conceived to be the interest of internal security defense or other public or matter exigency legitimate common concern. The then collective interest overrides risk of harm tenet of to individual as basic reputation, social order. converse of this would subvert plainly in the service imperative principle policy privilege of the essential welfare. Executive or closed sessions public are due of such ofttimes to the indispensable prosecution in the this safety; interest of common but inquiries, as does not of such information preclude publication in fit its discretion deem may proper committee for the and when the judicial process general good; was invoked, it is for the whether jury say privilege abused, unless there be an absolute the circum stances of malice. irrespective
Here, the evidence of a committee-authorized publi uncontradicted; and even if the proofs open cation stood then the issue this contradictory interpretations regard, the exclusive of the jury. was within province
III. And it is a defense for defamation to an action good used are fair comment a matter of the words but on interest Eair comment is libelous or concern. public Fair at all and no and bona requires justification. fide comment and criticism matters of concern is *21 the are not The libel, and words freedom defamatory. of the is in an of the freedom journalist ordinary part essence the in of the “and whatever subject, subject to length general but, the from statute may journalist, apart so also may go, 382
law, his is no other and no Leers v. higher.” Green, too, And in supra. “fair comment” England, is basic to the “fundamental of free and speech rights writing which are nation, so dear to the British and it is of vital importance to the rule of law on which we for our depend personal freedom.” Lyon v. Daily Telegraph, [1943] 746, 753, K. B. Scott, L. J.
“Pact” and “fair comment” are ofttimes not readily The distinguishable. inference be derogatory may come a comment, statement of fact rather than for failure to facts from specify which inference is derived. Green, whether, in inquiry as said v. supra, Leers “there is a sufficient substratum of fact stated or indicated in the words which * * *.” Kemsley v. are Foot, [1952] subject-matter of A. C. 345. Lord Porter action, there said that the facts to necessary justify comment might from the terms implied article, of the and the impugned relevant were whether questions matter was (a) subject indicated with sufficient to comment clarity justify being made, and comment made an (b) was such as actually honest, man though prejudiced, make. And it is for might decide to whether a communication judge of capable a defamatory whether the matter meaning also com mented on is one of concern; and, while it is for public decide, instructions, under jury whether appropriate the words are fact expressions or allegations opinion, and, if whether such expressions opinion, expressions are not, fair comment case it is opinion every first of all the to determine whether there is duty judge v, Green, evidence of unfairness to any jury. Leers go supra. case,
As matter here is subject one of concern, so, as it does the indisputably involving know” matters related to people’s “right substantially defense; the national and it was security plainly to resolve the issues of truth jury justification, basic comment, use of the and fair as thus just defined. privilege, Whelan, Green, N. Mosler v. J. Leers v. (1958);
383 on Libel 124. And supra; Gatley and Slander (4th ed.), see 93, 96, on Libel Odgers and Slander ed.), citing (6th Lee, Cox v. L. R. 4 B. 284, Ex. C. Kelly, (1869),
To
as does the
that
“headline”
say,
the
plaintiff,
the
of
made
count “was
article
the
of the second
subject
and
libelous
se
so called for a directed
for
per
“judgment
/’
is to
the
liability
question.
compensatory damages,”
beg
The occasion
words are not
being privileged, defamatory
malice;
actionable unless motivated
actual
by express or
and malice
the
was
for
essentially
question
jury,
have
the onus of
could
plaintiff
proof.
jury
bearing
found,
find,
was
as it no doubt did
the communication
made in the
of what was
conceived
honestly
pursuit
reasonably
to be
an exercise of
basic
public responsibility,
right
Julian v.
of freedom of
of
speech
press. Compare
Consultants,
Inc.,
2 N. Y.
American Business
2d
And,
N. Y.
2d
IY. Considered in the context of the foregoing principles, the was the not plaintiff prejudiced by any of challenged evidence on nor refusal to certain rulings by charge of his requests. exhibits, As to the P-9 was a
(a) purely self-serving the record,” to letter reply by plaintiff, “solely received from his officer commanding on October 1946 “reprimand him “for carelessness in ing” custodianship classified documents”; and P-10 to be the purports commanding record,” officer’s also for the acknowledgment, “solely testi verified him. The these monially by materiality of documents raised evident. to issues here is not The admission into P-8, instance, evidence of Exhibit at did plaintiff’s not in itself render Exhibits P-9 and P-10 At all competent. events, in of the submitted questions to light jury, that an harm we are inference of clear not sustainable. questions to (b) relating evidence remaining merit; and the are also in to wanting requests were charge either insufficient law, in measured rules, foregoing or were in essence. charged And in
(c)
context,
this
there is no substance
motion,
to plaintiffs
M-84, for leave to
“supplement
record”
introduction of documents concerned with
his “declassification,
suspension
dismissal from his em
ployment as
radar
at
Monmouth,”
Fort
expert
is to
say,
a letter
(1)
from the
plaintiff
Office of the Secretary
dated
him
Army
May 23, 1958,
that “it
advising
was
concluded that a favorable determination should be made
on all
set forth
charges”
in
notice
Septem
given
23, 1958,
ber
except
“report”
while em
at the
ployed
Evans
“48
Signal Laboratory,
classified docu
ments were found in
home and that on two other
[his]
occasions
during
attempted
violate security
[he]
regulations by
removing papers
into the
bringing papers
Evans Signal Laboratory
authorization,”
without
proper
that “In
at a decision
this
it
arriving
was
charge
necessary
consider
the evidence set
only
forth
*24
of the
transcript
which took
hearing,
on 5
place
January
1954,” and
it is determined
“Accordingly,
that your employ
ment at Fort Monmouth
would
still
not be clearly consistent
**
with the interests
*,”
of national security
a decision
“not determinative
your
of
other
eligibility
employment,
or for access to
material
in
security
other capacities”; and
certified
a
of an order
(2)
copy
of the United States District
Court for
District of Columbia
“to
plaintiff
reinstating
his former
if it
position
available,
or
a
of
position
like
seniority, status
entered
grade,
pay”
October
to the
pursuant
mandate of the Circuit Court of Appeals
Brucker,
for the
Columbia,
District of
Coleman v.
103 U. S.
D.
C.
Weinthaub, *25 count, with to the second but dissent respect result reached reasons: there the first count for two is no (1) as to to secret report proceeding, (2) imputa- privilege crime is “fair comment.” beyond corruption tion an of the United States absolute provides The Constitution with to respect “any members of Congress for privilege
387
Speech or Debate in either
im
I,
House.” Art.
6. The
§
munity extends to committee
Brand
Tenney v.
proceedings.
hove, 341
367,
S.
71
783,
S. Ct.
95
Ed. 1019
U.
L.
(1951).
Our State Constitution of 1844 contained
equiva
language
lent to the federal
8,
Art.
provision,
IY,
4,
and the
par.
§
Constitution of 1947 expressly extends the immunity
“any
to
aof
meeting
legislative
IY,
4,
committee.” Art.
9.
par.
§
I
not
do
understand the
to find an
majority
absolute
beyond the
privilege
precincts of the House and committee
room. Such
as exist
expressions
deny
privilege beyond
Ansell,
those premises.
v.
Long
68,
63
D. C.
69
App.
F. 2d
386, 94 A. L. R. 1466
C. Ct.
affirmed
(D.
App. 1934),
on
other
293
grounds,
76,
21,
U. S.
55
Ct.
79
S.
L. Ed. 208
v.
4
(1934);
Coffin,
Mass.
The statements by Senator were made at McCarthy conference after the press close of a secret session of the subcommittee. I understand the find he majority had a relate qualified what had privilege happened behind closed I doors. will assume his course was authorized com- mittee, notwithstanding vagueness Senator’s testi- mony Nonetheless, that regard. statute, no federal, state or to confer an purports immunity in those circumstances. If exists, it must be founded upon case law. I know of no decision such an from carving exception liability defamation, for general respond and although I do question judicial power to innovate the privilege, I find it. justification no *26 view, suffi is,
The that in my fact the session was secret Corpora cient v. Hearst deny Danziger See privilege. tion, The E. App. 1952). 304 N. Y. 107 N. 2d 62 (Ct. the the that report rationale of the of privilege press in the same of the could have public acquired members nature of the The secret formation attendance. by personal Moreover, the the reason for the privilege. hearing negates that report essential of the qualification privilege a fair of pro accurate or complete abridgment There is no measure a report against ceedings. way The testi this are secret. standard when proceedings of a privilege in this case demonstrates vice mony had The that plaintiff these circumstances. Senator stated That factual assertion was been roommate of Rosenberg. whether false, any to discover sixch but efforts concededly were fruitless the secret was offered at testimony hearing itself. I can see no public for want access to record with individual so to speak interest in legislators permitting for the victim to beneath legis out any opportunity get of what the record contains. privilege lator’s assertion view, an is, in my establishes majority opinion which committee If the House or a to irresponsibility. invitation in should conclude authority within its acting served a disclosure proceedings terest would be would action be to open the appropriate a secret hearing, need, I and hence no warrant, see no to the public. record here pursued. course for the unfair unreasonable had no kind. any I the Senator privilege Hence believe claim a course, defendant cannot follows, privilege It I note in statement. passing his unprivileged to disseminate 2A :43-l extends to press qualified N. J. S. issued de by police “official statements to report in investi and coroners heads, county prosecutors partment them.” The statute completed progress gations Co., v. Courier Post construed, supra Rogers has been tightly liability the rule of is an inroad upon N. J. 393), (2 federal has seen fit state nor Legislature neither the which their the statements of members. reports to press to extend The second reason a is not here available qualified privilege is that would not two statements in concept justify the report.
The first the is assertion that could plaintiff (the jury find the was report understood to relate to have him) “may been the direct link between the laboratories and the Rosen- berg Por the reason it spy ring.” im- already given, is to tell possible whether Senator was here McCarthy relating someone’s as the opinion spread whether, on secret record or as context, seems more from the likely it was his own obser- at vation the time the of But press conference. since the burden defendant’s was to demonstrate the former in order a rely upon right report something absolutely privileged and that burden was met, not the is whether question can be quoted portion justified on the basis of a qualified in either the .Senator privilege defendant to comment facts issue, stated. The as truthfully submitted to was whether the jury, statement was “fair quoted com- ment.” It me seems to that as a matter of law it was not.
In of speaking judicial privilege report proceedings, J., a unanimous court said in correctly Rogers, supra, N. (2 at : page 402) “* * * However, protection of this does not report defamatory extend to of statements not made in the actual report judicial proceeding, and the not of must contain de- course a
famatory any quarter ivhatsoever, observations and comments from properly legal proceeding.” in addition to tohat (Emphasis forms added) Pair comment criticism. means Criticism may intense and even official’s for dispute capacity office on basis of the facts revealed. But the of a imputation corrupt or, event, motive of the commission of crime any is not criticism; it is vilification. It is itself and the defamatory, defense truth sole is of made. One charge may dissect absurd, and call it inane or but judge’s opinion he may not add that it was or could have been the of product bribery. There no license in to broadcast an anyone accusation convicted, one, crime, yet guilty absent
390 himself an absolute the defamer cannot insulate privilege, from a statement in terms of liability by casting charge or belief. opinion holds that authority imputation weight Prosser, motive is not within comment. corrupt permissible Jur., 95, 622; Torts ed. 33 Am. Libel and (2d 1955), p. § Slander, 156; Annotation, L. 416 110 A. B. p. § correct, I think that is itself a rule is for motive (1937). fact, and hence the that motive issue should be whether in fact existed. The view is that imputation English such motive be fair comment if it is warranted may facts, e., i. if a fair-minded man draw that reasonably might inference from the facts Libel and Slander Gatley, stated. ed. 350. It is not (4th 1953), p. necessary present pur Green, poses State, to discuss decisions in our Leers v. 24 N. J. N. Dressler v. J. (1957); Super. Mayer, & Div. v. Guardian 1952); Merrey Printing (App. *28 Co., 79 N. J. L. 177 affirmed Publishing 1909), (Sup. Ct. 81 N. J. L. 632 & A. the article here 1911), since (E. goes the beyond of a motive and the imputation corrupt charges Slander, Jur., 33 commission of crime. Am. Libel and 161. The asserts factual matters nowhere p. charge § e., in the i. that was member of a detestable proof, plaintiff fed secret information to a conspiracy power. foreign It is no moment that the used was plaintiff language be” the link “may treacherous rather than that he “is.” In hurt, terms of the to is capacity destroy reputation equally evident. In terms of it is even less defensible to morality, mere broadcast a of criminal involvement. possibility Sus- should be confined the inner sanctum of official- picions to ; dom not they do the channels of mass communica- belong tion. I see no to the that truth alone proposition alternative can constitute a defense to a The differ- so charge phrased. all, “is,” ence between be” and if material at relates “may the inflicted, to the measurement of amount.of rather injury than to to liability respond.
The further statement which I find beyond any privilege following:
391
unofficially
“The
he has
with Justice
Senator
added
conferred
Department
they
brought
man can be
officials and
have decided the
espionage
to trial under
act.”
The form
added
of the statement
indicates
it was
the Senator at the
conference rather than a
press
report
what
in the
At
for the
appears
any rate,
secret record.
stated,
reasons
it
within
not
deemed to be
already
may
he
can
absolute
of the floor.
If a
privilege
found, the
think it
source must be other circumstances.
I
clear that
the undisclosed officials
Department
Justice were
their
virtue of
office to broad
privileged by
to
an
cast
their
general public
opinion
guilt
Co.,
individual.
393);
v. Courier Post
N. J.
Rogers
supra (2
Hearst
157 N. Y.
2d
Kelley
Corporation,
(3d
v.
S.
Co.,
v. Bulletin
369 Pa.
85 A.
Dept. 1956); Morgan
2d
Ct.
Herald
(Sup.
1952); Lancour v.
and Globe
Ass’n,
111 Vt.
I would reverse the on the first count. judgment therefore For Burling, Heher, Jacobs, affirmance—Justices Francis and Proctor—5.
For reversal in Justice pari—Chief Weintraub—1. COMPANY, ARTHUR VENNERI A NEW JERSEY CORPORA TION, PLAINTIFF-APPELLANT, v. HOUSING AUTHOR PATERSON, ITY OF CITY OF AND B. J. LUCARELLI CO., INC., CORPORATION, A & NEW JERSEY DEFEND ANTS-RESPONDENTS. February Argued Decided March1959.