Sweeney v. Schenectady Union Pub. Co.

288 Cir., 244. 83 F.2d S. 2 Mail S. Cuba In negligence intervening at bar the case apparent how proved. was not It is not stern running to the paying out the line strain, nor that bitt would released to some moved line could have been to withstand bitt cleat better able established on having strain. Fault was on part tugs, the burden fault contributing the claimant to show Royal Mail Steam libellant. B., Companhia De N. D. Packet v.Co. Cir., 55 C, F. 50 F.2d affirmed denied, 287 U.S.

2d certiorari ap- tugs’ On the 77 L.Ed. 528. peal the decree must be affirmed. did not The owner of the Corone error but is assignments nor file appellee. asks us to reverse here as He Under Rule decree the Corone. December 38(3) of this court in effect standing relief he has no to seek with error, filing assignments of whatever out practice the absence such be the Ethel, Cir., Mary Cf. The F. a rule. Cir., 527; Rafael, F. The San considered 275. But he were appellant prevail. The liabil he could not clear; gave ity she of the Corone damage berth and resulted. barge a foul Pittston, Cir., F. 129. was aboard the Cor- the son owner participated negligent moor ing.

Decree affirmed. SCHENECTADY UNION

SWEENEY CO. PUB.

No. 350. Second Circuit. Court

July 18, 1941.

Rehearing Aug. 15, Denied community Ohio, standing in his in the resides, regard, high he wherein respect, and the he has hith- esteem confidence and enjoyed among erto his associates both CLARK, dissenting. Judge, Circuit Congress the of United States the by legal the fraternity the elsewhere” publication newspaper by the defendant “Schenectady which the Union Star” called widely “in the State circulated and read New United York the states of the of the people States and thereof” among the following: raging fight “A hot behind-the-scenes congressional in Democratic the ranks over effort of Father the Coughlin appointment judge of a in Cleve- Jewish land. proposed appointee “The Burt is Emerich Y., Foy, Albany, (John DeGraff & N. Freed, Attorney U. S. District in Cleveland Conway, O’Connor and William both of F. Bulkley, partner and former law of Senator Albany, Y., plaintiff- N. counsel), for verge who is on being the elevated to appellant. the U. S. District Court. Fryer, Y., Schenectady, Charles G. N. opposition “This aroused the violent has defendant-appellee. for Representative Sweeney, Martin L. HAND, CHASE, CLARK, Before Cleveland, Democrat of chief known as the Judges. Circuit congressional spokesman Cough- of Father lin. CHASE, Judge. opposi- “Basis Sweeney-Coughlin of the in this suit the Jurisdiction tion is Jew, the fact that a Freed is publication by libelous the defendant of the not born in the United States. Born in statements concerning plaintiff the which Hungary brought Freed was presently be set forth di rests United age was natur- States versity; plaintiff being a resident of years alized later. Ohio and the defendant a New York cor “Irate, Representative Sweeney is en- poration. appeal The is from an order dis call deavoring Repre- a caucus Ohio missing the on motion after protest against sentatives December 28 to filing of an answer consisting general of a appointment.” denial; special matter in mitigation of dam ; ages printed truth of matter published The matter was re coupled fairly with the right to comment by publication ceived defendant thereon. No damages were organization from known as United question and the before us is whether the Syndicate, published Feature It Inc. was publication, which on this must be much same in many form other taken granted actually as having been newspapers in this and the result false, made and having been was ing brought by libel suits in various courts se. O’Connell v. Press Publishing plaintiff been have numerous. In 214 N.Y. 108 N.E. 556. some motions to the com instances dismiss complaint alleged plaint ground plaintiff, publication on the that the that the a representative Congress granted; from was not libelous se Ohio and have been lawyer profession, in some such motions have been was member denied. good however, of Ohio, bar in standing jurisdictions, Decisions other the State of “injured had name, good in his are not in conflicting but are for us reputation, fame ap in the and conclusive conduct since turned on execution duly plication of his official as a libel duties law of states other elected representative and chosen of the than New York while here we must be people of the Congress governed by State Ohio law the State of New States, pursuance Tompkins, United of his York. Erie Railroad Co. v. profession practicing attorney good U.S. 82 L.Ed. standing before the concerned, Bar in the State of A.L.R. We are not how- plaintiff’s ever, plaintiff subject as a Freed’s any upon the attitude on the with libel likely lawyer made since no reference was and would consequence way Keene him as profession of his. in such a to that reputation Association, injured Hun in one or more v. Tribune respects noted. N.Y.S. 1045. above course, easy apply general not to this test published concern- The false statements to a Opinions preju- case of this nature. or separately together him nor ing neither dices concerning might the matter in hand more of- make him out to be a character well lead to different conclusions. he people than right-thinking to fensive Congress of spokesman be as in would the principles in Some established appoint- Coughlin; opposed Father who the helpful especially New York libel law are the office of ment a man named Freed to just in at a arriving decision. of them One Freed Judge United because States District that a false statement need not neces is in the United was a and one not born sarily charge any Jew law to the violation States; mat- angry about the and who was se; that, be per and another is point attempting ter to to have Ohio the official, public when made of a false accusa congressmen against protest caucus in may which right-thinking well lead tions appointment. Freed’s people public unworthy to believe him But, aside, they clearly all do at- else trust and confidence are libelous se. try purpose Ass’n, to tribute him the to Bennet desire v. Commercial Advertiser appointment 125, of Freed to the to the 230 N.Y. 129 N.E. 343. And still that Freed unprivileged, office mentioned the reason another is that published an foreign all, is a The con- born. need falsehood not make or even Jew fairly permit reading text the majority does not of those who it think read the less foreign language person as the birth of making enough the defamed. is plain- part Freed the all cause of the many sufficient noticeable who read it are opposition appointment hate, tiff’s to but despise, his made to scorn be or con contrary by rather fact stressing temptuous person concerning of the whom ap- foreign that he was a birth whose the false published. statements have been Jew parently gave Company, 185, but an additional basis Peck v. Tribune U.S. plaintiff’s opposition. 1075; the decisive And so S.Ct. Restatement, Torts, 53 L.Ed. 16 Ann.Cas. question be 559(e). to determined this § publication false whether or not the of such certainly place And the time and unprivileged concerning statements publication given must weight be due plaintiff years within the last few in the plaintiff by being effect. This accused of places be as deprive trying to man of an to said as matter of law not to have created public because, presumably in office both any liability special dam- in the absence of religion, would, race and he was in Jewish ages. being gain tolerance what it no doubt law, in approval The New York as stated respect and increased in some Evening Journal, others, Kimmerle New York quarters; v. in only where hit Inc., flutters, indifference; N.Y. 186 N.E. bird there would be country makes libelous se the religious but still dedicated to expose public “words which tend to decent, one to liberty-loving and racial freedom shame, hatred, odium, obloquy, contumely, present people great still are numbers ridicule, contempt, aversion, ostracism, greatly by are and still offended the nar disgrace, degradation, injustice or to induce an the bigots row-minded who see opinion of right- evil one the minds of individuals en masse and condemn thinking persons, deprive merely and to one of them because their ancestors were friendly confidence and their intercourse of a certain race or themselves are of society.” Sydney To the religion. same effect is a certain Those who hate in Newspaper Corp., prone MacFadden Pub. person are tolerance practices N.E. A.L.R. N.Y. 1419. who believes acts of in accord general contempt. This is in with the with aversion and definition tolerance And in the Restatement found times when it Law of in these is universal knowl 559.' The foreign gained Torts. See test edge whether dictator § persons right-thinking reasonably by practices power be which large- included by expected publication scale, persecutions be induced unreasonable Jewish truthfully represented important that it played to believe the which have many it charge go clear making name anathema that the must the ex- parts office, publication of tent impropriety of this as definite Ass’n, well alleged may such Bennet statements those v. Commercial Advertiser as gain person falsely clearly accused N.Y. 129 N.E. but contempt case, right-thinking recovery the present before can scorn appreciable proof damages. numbers. Freedom had without speech is, always been, as it has freedom general, view this seems to be fairly tell truth and comment by majority the fact that shown damaging spread facts and not a license to brought plaintiff many this actions gathering guise falsehoods of news newspapers various based on its dissemination. Many same article have dismissed. disposed places of cases were opinions; without reasoned where Jews popula is up of those where the matter portion make a sizeable discussed, tion, may reference be made to the as are known to do persuasive reasoning the de territory in which it is that the Tennessee Su preme newspaper speaking through Court Chief fendant’s circulated when Justice Sweeney Newspaper Printing made, for Green v. it taken be Corp., Cavanah, granted appreciable D.J., that there will be an 147 S.W.2d contempt Sweeney Capital Co., Pub. number who hate or v. News D.C. hold merely Idaho, F.Supp. against 37 one who discriminates a Court Ohio Jew below, in this of affirming he is a because whether born dismissal Jew Sweeney majority not. A the court The Beacon or Pub Journal opinion Co., App. 475, is lishing Ohio that 66 35 N.E.2d is stated principles under sufficient above 138 Ohio St. dismissed required 764, May 7, and that the defendant should be N.E.2d 1941, ánd of to on district opin meet it the merits. court in this cáse. Of süch two, contrary only ions to the we find both reversed and Order cause remanded ' by judge the same district in the Northern trial. Illinois, District'of apparently-unreported, 'interpretation and an based of Illi CLARK, Judge (dissenting).-- public nois law as limiting comment on in; herein decision seems to -me not" officers. the; law, with accordance New York where , has, me, public only Not does right comment a this seem to there- on official fore, State, practical law least for New safeguarded by' been “a- new York way definitely ordinary- disturbing different rule” but also law. somewhat than -in- would to in if charge “a clear be-a fine live corruption' cases or world tolerance incompetence charge were usual that a gross holding up to dis so of the lack one even, contumely” required; against public thereof a grace and is official could bé so imputation corrupt presumptively an untrue that it or dishonorable would seem justified on will be as its face unfair libelous. fair comment But in our motives present we must it is a reasonable from the facts. not take the inference world naive Crowley ought Corp., App. Pub. view that what to Tanzer v. and that who- 620, 622; slanderer; suggests contrary Div. N.Y.S. ever is a Gardner so, Publications, Inc., App. healthy Life v. Home do we shut if we off all 872, 874; prejudice, N.Y.S. v. criticism of bigotry Div. Hills and allow scope impunity. 122 Misc. with Press N.Y.S. full to act Even more App.Div. 752, dangerous affirmed 214 N.Y.S. is the rationale of the decision not'libel-, so the cited cases hold that leading appreciable And a comment public comments more to ous se on number of readers hate or hold in officers con- than, suggesting corrupt directly tempt public official motives commented is on - charges sweep here —which rather’ Its broad does the se. take would prejudice bigotry corruption day than or day in comments found after impropriety newspapers, Tanzer case office. In the most conservative either quotations comment attributed dishonorable mo direct statement or as of re- mayor critics, sponsible public official, tives a of a that a par- attorney; city ticularly legislator, pro- anti-labor, Hills cáse the com is or charged anti-Nazi, city pro- pro ment favoritism' or or or anti or this or particular race, color, fuel administrator to Minority coal dealers thát or creed. com- prosecution labor, religious and in the think political cases. I ment on views there- politicians becomes activities fine making hazardous. And the fore by the is indicated distinctions rationale suggesting implication comment that a candi- plaintiff's objection judicial to the foreign alone date birth course, uncertain proper. Of so suit, at once by a rule threat of invited extensive, restriction vague and press as direct as freedom almost liability. rule of clear adequate answer I do think it comment, public such a threat if democratic necessary seems to me which processes function, say it are For applies only to false statements. inference, the Tanzer comment a matter suggests, hence not case public of- proof disproof. The explicit always himself as ficial will sincerely testify, will bigoted, and proving then the burden enough. And upon the rest truth defense commentator, the burden sustain must If he fails true. his inference showing suits minority of the in even in trials sporting element him-—as the susceptible shades juries varying opinion probable make local —he lesson, brake a serious taught com- But the discussion established.

free proof of requirement mon-law needs, protection he damages gives him the him time it does while the same loss injury and really serious causing from That statements. false and unfair dis- here, as applied rule be the should held. trict court

MILCOR STEEL GEORGE FULL CO. A. ER et CO. al.

No. 335.

Circuit Court Second Circuit

July 31, 1941. of Certiorari

Writ Granted Dec.

See 86 L.Ed.-. Wilkinson, 111., George Chicago, Blum, City (Asher & of New York

Mock

Case Details

Case Name: Sweeney v. Schenectady Union Pub. Co.

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 18, 1941

Citation: 122 F.2d 288

Docket Number: 350

Court Abbreviation: 2d Cir.