Dr. Linus Pauling appeals from a judgment of the District Court for the Southern District of New York dismissing his complaint in an action for libel against the publisher of the New York Daily News after a verdict for the defendant. Federal jurisdiction is founded upon diverse citizenship. The principal claims are (1) error in submission of the defamatory nature of the publication to the jury, (2) the reception of evidence contended to be banned by the hearsay rule and failure to give proper instruction in regard to it, and (3) general unfairness by the trial judge. We affirm.
The alleged libel was an editorial published by the New York Daily News on September 2, 1961, shortly after the announcement of resumption of nuclear tests in the atmosphere by the Soviet Union. The article, which also contained photographs of the two persons named, is set forth in the margin. 1
*662 The answer denied that the article was defamatory and also pleaded various defenses, three of which are important on this appeal. A Third Defense alleged that “Insofar as the editorial complained of contains statements of fact relating to plaintiff, such facts are true in substance and in fact and insofar as it consists of comment, such comment is fair comment about such facts and relates to matters of public interest,” was published in good faith and without malice toward plaintiff, and expressed defendant’s honest opinion. A Fourth Defense asserted that plaintiff, having achieved a good professional reputation in education and scientific research, “became an outspoken advocate of causes, policies, organizations and individuals sympathetic to communism, and he sought wide-spread publicity for such advocacy,” thereby creating “for himself a reputation that could not and did not suffer any damage by reason of the editorial complained of.” A Sixth Defense set forth that the opinions expressed in the editorial “were based on information communicated to defendant by reliable persons and from reliable sources including prior publications (i) of legislative investigating committees of the United States of America and of the State of California, and (ii) of reputable news media” believed to be true by defendant, which published the editorial in good faith in the ordinary course of business and without malice.
Testimony of Dr. Pauling on direct and cross-examination developed his long and extensive pacifist efforts, including membership in “ten or twenty peace organizations,” and, more particularly, his endeavors to stop nuclear testing. These included the submission of a petition by scientists to the United Nations to stop the testing of nuclear bombs in 1958;
2
his initiation in 1958 of an action in the District of Columbia to enjoin the Secretary of Defense and other government officers from testing, regardless of what other nations were doing; his prosecution of this action, see Pauling v. McElroy,
*663 (1) Judge Dawson told the jury that the first issue of fact it must decide was whether the editorial imputed “that Dr. Pauling is either disloyal or a Communist, or a Communist sympathizer.” He said that “To accuse a man of being a traitor to his country, or of being a Communist or pro-Communist, is, of course, libelous,” and that Dr. Pauling contended this was what the article meant. He then explained the News’ contention that the article meant only that the policy of the United States had been to have nuclear weapons and weapon tests so long as there was no international agreement with adequate safeguards, and that as to this Dr. Pauling had not been “on the American side.” Such an accusation, the judge charged, would not be libelous. The jury must thus determine whether the editorial “would convey to the ordinary man that Dr. Pauling had been a traitor to the United States, or was pro-Communist or anti-American, or whether it indicated, on the contrary, that he had merely expressed a view different from that of the particular government in power at that time.”
We find nothing wrong with this charge. It is true that “If the language of a publication is unambiguous the question whether it is libelous per se is for the court” and that “it is libelous under New York law to write of a lawyer that he has acted as agent of the communist party and is a believer in its aims and methods,” Wright v. Farm Journal, Inc.,
*664 (2) Despite its position that the editorial did not in fact accuse Dr. Pauling of being a Communist or a pro-Communist, the News had to recognize that the jury might think otherwise. It could defend against that possibility by proving the truth of the allegedly defamatory statement. In support of the defense of truth the News brought out on cross-examination of Dr. Pauling a considerable number of items from which the jury could draw the inference that he was in fact a Communist sympathizer; from the News’ standpoint it was important that this be done in some detail since the accumulation of instances might support an inference unwarranted from any one. The major portion of the trial was therefore devoted to questions intended to bring out Dr. Pauling’s past association with Communist sympathizers and activities. 4
The News was not required however to stake everything on the jury’s accepting the defense of truth; it could fall back on its Third Defense of fair comment, and upon partial defenses including matters going to the extent of the damage and, under a New York statute, “mitigating circumstances, including the sources of * * * information and the grounds for * * * belief.” 5 An extra-judicial assertion which the hearsay rule would bar as-proof of the matter asserted may be admissible to establish one or more of these defenses on the basis that it is being “offered, not as an assertion to evidence the matter asserted, but without-reference to the truth of the matter asserted,”- — in other words, that the fact-of the offered utterance is relevant in and of itself, regardless of its truth. See 6 Wigmore, Evidence, § 1766 (3d ed. 1940); McCormick, Evidence, 463 (1954); Morgan, A Suggested Classification of Utterances Admissible as Res. Gestae, 31 Yale L.J. 229, 231-32 (1922); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62. Harv.L.Rev. 177, 199 (1948).
The privilege of “fair comment,” the so-called “rolled up” plea,. Gatley, Libel and Slander, 477-78 (1960 ed.), is defined in A.L.I. Restatement,. Torts, § 606, as follows:
“(1) Criticism of so much of.' another’s activities as are matters, of public concern is privileged if' the criticism, although defamatory,.
“(a) is upon,
“(i) a true or privileged statement of fact, or
“(ii) upon facts otherwise-known or available to the re *665 cipient as a member of the public. and
“(b) represents the actual opinion of the critic, and
“(c) is not made solely for the purpose of causing harm to the other.”
Reports of Dr. Pauling’s activities which The hearsay rule would render inadmissible to prove truth might be admissible for various purposes with respect to this defense. One would be to show that the comment was upon a “privileged statement of fact”; 6 on this basis it was proper for the News to introduce reports of legislative and executive proceedings to show the “privileged facts” that formed a basis for its comment. If the News relied on such reports, these would also be admissible, .again regardless of their truth, to show that the comment was “not made solely for the purpose of causing harm,” in other words to negative “malice.”
A still broader basis for the admission of evidence which was inadmissible as hearsay on the defense of truth is suggested by the point, apparently asserted by the News’ Fourth Defense, that so many people already considered Dr. Pauling a Communist sympathizer that for the News to call him one would cause no more than nominal damage. Hence, the argument runs, evidence of previous reports freely circulated about the victim of the libel are admissible, regardless of their truth, to show how he was generally considered. We are not required to decide whether, as a matter of common law, New York would follow the majority in Bell v. Parke, 11 Ir.C.L. 413 (1860), in excluding such evidence, see 1 Wigmore, Evidence (3d ed.), § 79 — on the ground that despite the strict logic favoring admission, the danger of confusion is too great — but see King v. Root,
We are now ready to consider the first episode. The News was allowed *666 to bring out on cross-examination of Dr. Pauling that twice in 1952 the State Department rejected his application for a passport; that on one of these occasions Dr. Pauling issued a statement to the press that “The action of the State Department was based on suspicion that I was a Communist and because anti-Communist statements by me have not been sufficiently strong”; and that this was what Dr. Pauling believed. There was no objection to any of this as hearsay; counsel objected to the question on rejection as “too far afield,” made no objection to the question as to the press statement, and objected to the question of Dr. Pauling’s belief without saying why. The action of the State Department in rejecting a passport application, which would normally be granted as a matter of course, was admissible to show that the editorial was an opinion based on a “privileged fact,” to negative malice, and to show mitigating circumstances under § 78 of the New York Civil Rights Law. Since a statement of grounds by the Department would have been similarly admissible, it would be straining at the gnat to take a different view with respect to a public attribution of grounds by Dr. Pauling himself. Whether Dr. Pauling believed in the truth of his press statement was indeed irrelevant, but allowing him to say that he did was not prejudicial if there was no error in what had gone before. A possible chink in defendant’s armor is the lack of particularized evidence that Maury, the author of the editorial, knew of this episode when he wrote the editorial. Maury testified 7 that, before writing, he “got the clippings on Pauling, sort of ran through them to refresh my memory, which was pretty clear on him, anyway,” and that “our library files contain everything that comes along about any subject that it has files on.” In the absence of any evidence to the contrary, these general statements warranted the conclusion that Maury was informed of the facts. At least this was so when the objection was so vague as to give defendant no clue that any deficiency could be cured by a question to Maury. 1 Wigmore, Evidence, § 18, pp. 321-22, 332-38; McCormick, Evidence, 117-18. There was thus no error in receiving this evidence; whether there was error in failing to instruct the jury as to the issues on which it could be considered will be discussed below.
The next piece of cross-examination now contended to have violated the hearsay rule consists of two questions asking Dr. Pauling whether statements had been published in the press and made “in the Halls of Congress” that he had followed the Communist Party line, which he answered in the affirmative. It is sufficient at this point to say that no objection to these questions was made.
Passing instances where Dr. Pauling was asked whether he knew that various organizations with which he had been connected had been found subversive by the Un-American Activities Committee or the Attorney General, which were admissible as a basis of fair comment, we arrive at a subject of more extended complaint. Defense counsel had marked for identification a Report to the Senate Committee on the Judiciary by its Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws, entitled “Testimony of Dr. Linus Pauling, June 21 and October 11, 1960.” After eliciting that Dr. Pauling had been subpoenaed to appear before the Subcommittee, 8 defense counsel, without objection, *667 brought out that some newspapers had published the Subcommittee’s report. He then asked: “Q. Did this Senate Committee conclude that in your statements and your attitudes before the Committee you had displayed a consistent pro-Soviet bias?”, to which plaintiff’s counsel objected as “hearsay and conclusion.” When the judge ruled, “Well, he is asking this witness. He is not putting in this report. He is asking this witness if that is the conclusion,” Dr. Pauling answered that the conclusion was one with which he disagreed. Then, after some further interchange, defense counsel propounded a series of questions, of which the following is typical:
“Q. Now, based upon the Subcommittee’s interrogation of you, did it conclude that you in the course of your career had been connected with various pro-Communist or Communist front political activities and with a significant number of persons whose affiliations with the Communist Party U. S. A. are a matter of record?”
Upon objection that this was “hearsay” and “conclusion,” the court permitted the witness to “answer whether they said that and whether he says this is one of the false statements. If he says it is a false statement, it is a false statement.” Dr. Pauling admitted that the Subcommittee Report had made statements substantially as characterized by defense counsel but denied their truth. 9 Maury testified that he had read the Subcommittee report when it was released in March, 1961, and that he “may have looked at it” again before writing the editorial but in any event “I was familiar with it. I knew the whole substance of the thing.”
Our previous discussion has shown that the Subcommittee Report itself would have been admissible for a number of purposes. We do not understand why defense counsel chose to get it before the jury in the way he did rather than by offering it or reading from it, but that is not our concern if plaintiff was not prejudiced thereby. Since the terms of the Report were at issue, the best evidence rule entitled plaintiff to object to oral testimony as to its contents and to insist that the report itself be offered; but plaintiff’s trial counsel refrained from pressing that point, wisely, we think, since the report itself would have been immensely more damaging than the few questions asked about it. We have examined the Report to see whether the questions propounded were an unfair paraphrase; we find them to have been almost a literal transcription from two of the Subcommittee’s eleven unfavorable conclusions. 10 *668 To be sure, it was scarcely relevant whether Dr. Pauling knew what the Subcommittee had said, but if defendant chose to prove the Subcommittee’s statements by the oral testimony of a reader of the report, we find no ground for reversing on that account when no objection under the best evidence rule was made — particularly when it is so plain that proceeding in this manner caused no prejudice.
We thus come to the serious issue in the case — whether it was reversible error for the judge not to have given specific instructions as to the limited purpose for which the jury might utilize the evidence just reviewed. We note preliminarily that the burden of seeing to it that a proper limitation is placed on the use of utterances banned by the hearsay rule as proof of the facts stated but admissible for narrower purposes, falls on the opponent of the evidence. See 1 Wigmore, supra, § 13; Malatkofski v. United States,
Both parties had submitted written requests for instructions. When the taking of testimony ended, the judge expressly, and properly, denied a request by the plaintiff for a binding instruction that the editorial was defamatory. He denied the other requests of both sides “in the form stated because in certain respects they are argumentative; in other respects they are not complete,” but said he would use them in preparing his charge. In dealing with the defense of fair comment he called the jury’s attention to Maury’s testimony “that he relied on the hearings before, and the report of, a Senate Sub-committee on Internal Affairs, and on various newspaper clippings in his possession when the editorial was written.” He said also that the defendant might resist or minimize a claim for punitive damages, by showing “that in writing the editorial he did so in good faith, relying on certain matters which had come to his attention * * * ” He did not say that the defense of truth could not be sustained by evidence that would be hearsay for that purpose although he in no way intimated that it could.
At the conclusion of his charge, the judge asked whether there were any exceptions. One of plaintiff’s trial counsel sought various amplifications, several of which the court made. Counsel then said “We have no exceptions because the Court has remarked on what he thought,” repeated “We have no exception,” and asked whether the exhibits would go to the jury, which the judge confirmed. Defendant says that under F.R.Civ.Proc. 51 this ends the matter. Plaintiff’s contrary contention rests on (a) his requests to charge and (b) an alleged denial of opportunity to take exceptions.
(a) One of plaintiff’s requested instructions, No. 6, was that the court had permitted the introduction of hearsay testimony, “in other words, testimony which consists of rumors or information conveyed to the officers of the defendant corporation” and that such testimony “was not admitted as evidence of truth of the defendant’s libelous publication, but was admitted for the sole and only purpose of establishing on the part of the defendant good or bad faith, *669 malice or the lack of it.” Another, No. 19, relating to the defense of truth, included a statement “that the defendant cannot establish the truth by hearsay testimony, nor can it establish the truth by rumor, nor by the testimony of its agents and publishers that they believed the truth of the libelous publication when it was published.”
Requested instruction No. 6 suffered from the vice of overstatement usual in such requests. The word “rumors” was grossly inappropriate; moreover, and more important, the instruction made no allowance for the admissibility of this “hearsay” to prove that defendant’s comments were based on statements of fact within a privilege, see fn. 6, and would scarcely have conveyed the permissible use of the evidence to prove a partial defense in mitigation of damages under § 78 of the New York Civil Rights Law. On the other hand, the request quoted from Instruction No. 19 was substantially correct.
We see no reason to doubt that if the point had been called to Judge Dawson’s attention by a timely objection, he would have supplemented his charge accordingly. The case is not like the decisions in this circuit, relied on by appellant, where the judge, having focussed on the point, charged the opposite of what had been requested, so that objection would have been a useless formality. Sweeney v. United Feature Syndicate, Inc.,
We are the more inclined to this view in that the “hearsay” evidence to which objection had been made, some eight or nine questions in a four-day trial with nearly 500 pages of testimony, had not played a role anything like so impressive as that which appellate counsel, with entire propriety, has assigned on appeal or as would be indicated by the attention to it in this opinion. Defense counsel did not even refer to these questions and. answers in his summation, which was-devoted rather to the allegedly non-defamatory character of the article as applied to activities which Dr. Pauling had admitted. Plaintiff’s counsel might well have thought it better trial tactics to let a sleeping dog lie rather than to press a request that the jury be told the purposes for which the report of the Senate Subcommittee could not be considered and thereby precipitate a request by the News that the judge impress upon the jury the important purposes for which it could be.
(b) The contention that the judge prevented the taking of full exceptions to his charge rests on an affidavit in support of a motion for a new *670 trial by one of the two lawyers who were plaintiff’s trial counsel — not the one who had spoken at the conclusion of the charge. The claim was that since both lawyers came from another state, they were unfamiliar with local practice as to when and how exceptions to the charge should be taken; that, upon inquiry in chambers, Judge Dawson told them that “minor exceptions” could be taken in the presence of the jury but that “general exceptions for the record” should then be taken out of the presence of the jury; that the objections made at the conclusion of the charge were only those “we could reasonably expect that the Court would alter or add to the charge”; 11 and that as soon as the jury filed out, the affiant requested an opportunity to take further exceptions, which the judge refused on the basis of the previous statement of his associate. In denying the motion Judge Dawson filed a memorandum which characterized this claim as “completely false.” The memorandum stated that the request for permission to take further exceptions to the charge was not made until after the jury was in the jury room and the court reporter had left, and while defense counsel was leaving; and that the court then pointed out that exceptions must be taken before the jury begins its deliberations, so that if the exceptions were proper, the court could correct its charge.
F.R.Civ.Proc. 51 states, with complete clarity and good sense, that objections to instructions must be made “before the jury retires to consider its verdict.” See O’Connell v. Naess,
*671 (3) We have given careful consideration to the claim of unfairness on the part of the trial judge. It is difficult for an appellate court to appraise the significance of remarks that may look quite different in a cold record than when made in the give and take of a trial. Although some comments would better have been foregone, the record is far from manifesting such unfairness as to warrant our ordering a new trial after a balanced charge and an afternoon’s deliberation by the jury.
If we took a different view on the matters here reviewed, it might be necessary to consider whether the judgment would not have to be affirmed in any event in the light of New York Times Co. v. Sullivan,
Affirmed.
Notes
. Two Johnny Come-Latelies
For years, a couple of semi-prominent American loudmouths have been agitating against nuclear weapons and weapon tests —the best defense the West has against Soviet Russian and Chinese Red manpower.
The pair are Linus Pauling, a California biochemist who once won a Nobel Prize, and Norman Cousins, editor of something called the Saturday Review.
Cousins and Pauling now profess to be horrified by Khrushchev’s announcement of Soviet resumption of nuclear weapon tests.
But all that Pauling has done about it is to record a plea to his friend in the Kremlin to reconsider.
All that Cousins proposes is that the United States take the matter to the United Nations, in the hope of rallying “world public opinion” (for which *662 Khrushchev gives not a damn — he blew a bomb in the air over Asia yesterday) to make the Kremlin forego testing.
It’s nice to have these two on the American side for once, however belatedly and lukewarmly.
But their ideas on meeting the Khrushchev threat are no better than their longstanding proposals that the West cripple itself.
Far preferable in the present situation is the flat statement of Dr. Edward Teller, father of the H-bomb: that the United States cannot survive unless it resumes its own nuclear weapon tests at once.
. The petition urged “that an international agreement to stop the testing of nuclear bombs be made now.” The News stressed there was no mention of inspection; Dr. Pauling contended this was implicit in the reference to an international agreement.
. The brief of Dr. Pauling’s appellate counsel points to another possibly defamatory feature of the editorial, namely, the statement that Dr. Pauling “now profess[es] to be horrified” by the announced Soviet resumption of nuclear testing. This is Claimed to be a charge of insincerity that would be actionable in itself, as well as to give added color to the reading that Dr. Pauling was working on behalf of tbe Soviet Union. But, although “profess” often carries the implication of insincerity, it does not inevitably do so; insofar as this sentence may have given added weight to the argument that the editorial charged Dr. Pauling with being pro-Communist, it was before the jury along with everything else; and the judge *664 was not asked to charge that the jury might find the editorial defamatory in alleging hypocrisy simpliciter. To the contrary, plaintiff’s trial counsel told the jury in summation, in words which the judge quoted, “I say to you if you cannot infer, or if you cannot understand that editorial to impute that Dr. Pauling is either disloyal or that he is a Communist, or a Communist sympathizer, then there is nothing to this case.”
. Dr. Pauling’s admissions included, among other things, that he had frequently intervened publicly on behalf of Communists or pro-Communists — the defendants in United States v. Dennis,
. The News’ brief cites this as § 78 of the-Civil Rights Law, McKinney’s Consol. Laws, c. 6, which became effective only September 1, 1963. However, similar provisions of Civil Practice Act, §§ 338 and 339, were in effect at the time of the-alleged libel and of the trial. Eor convenience we shall refer to the existing, statute.
. 1 Harper & James, The Law of Torts 458-59 (1956), explains that in the usual case the defense of fair comment exists only as to tire criticism and not as to the facts themselves, and that the latter must be “truly stated
or privileged
or otherwise known either because the facts áre of common knowledge or because, though perhaps unknown to a particular recipient of the communication, they are readily accessible to him.” Although the cases -cited do not throw light on what is meant by “privileged facts,” the thought must be that if publication of the “facts” themselves would not be actionable because protected by a privilege, such as the privilege for repoi-ts of legislative and executive proceedings, ALI Restatement, Torts, § 611; Cresson v. Louisville Courier-Journal,
. Maury was called by the plaintiff and was examined only by him.
. The Subcommittee Report recited Dr. Pauling’s unsuccessful efforts, between his two appearances, to have the subpoena quashed, see Pauling v. Eastland,
-, On another occasion, when Dr. Pauling was asked whether the Subcommittee found that he “had consistently opposed legislation and agencies set up by the American Government to safeguard itself against Communist subversion,” his trial counsel, after repeating his previous objection, noted, apparently to fortify this, that defense counsel was reading from the Subcommittee Keport. Later Dr. Pauling was asked whether the Committee had found “that you over the past decade played a role of outstanding im-portanee as an organizer and spokesman in the United States for organizations recognized as part of the Communist peace offensive and that in recent years you had concentrated your efforts in the test ban field?” The Court overruled an objection that this was hearsay, stating “The only question is whether Dr. Pauling recognizes the Committee said that about him, not whether it is true or not.”
. Others of these were:
“(1) The vague and general wording of Dr. Pauling’s petition [in 1958 to the United Nations], in particular the omission of any reference to the need for adequate inspection (at a time when the Kremlin was opposed to even token inspection) made it acceptable to the Soviet Government and therefore to Soviet scientists. It bore a marked similarity to the wording of the test-ban petitions *668 put out by the Communists through their creature organization, the World Peace Congress.”
“(4) Communist interest in and exploitation of Dr. Pauling’s petition constituted a phase of the Kremlin’s fraudulent ‘peace’ offensive.”
“(g) * * * He has participated in many international organizations and international conferences sponsored by the Communist peace offensive * * * In his statements and attitude Dr. Pauling has displayed a consistent pro-Soviet bias.”
. As indicated, we see no reason why the requests here under discussion did not come within this description. The only request the judge had expressly refused was to instruct that the article was defamatory.
. What we have written in regard to the failure to give express instructions that the “hearsay” evidence that had been admitted could not be used to support the defense of truth, applies
a fortiori
to the contention that we ought reverse for failure of the judge to give an express instruction that the News had the burden of proving the defense of fair comment. The judge twice spoke of the defendant’s having to “establish” this defense. Moreover, there is New York authority that where, as here, the “public occasion” is evident, the plaintiff has the burden of showing that the defendant went beyond proper bounds. Kenna v. Daily Mirror, Inc.,