60 A.D.2d 385 | N.Y. App. Div. | 1978
OPINION OF THE COURT
This libel action is based on an article which appeared in the January 5, 1976 edition of Real Estate Weekly, a newspaper published by Hagedorn Publishing Co. Defendants Harry N. Newman and Edwin Ostrow are attorneys who wrote the article as part of their regular weekly column, "Getting Down
Defendants moved for summary judgment, contending that the article was constitutionally privileged and constituted fair comment. Special Term held that even if the article could be construed as- having a defamatory meaning, it deals with a matter of public interest and is legally protected by a qualified privilege. It was concluded that the burden was on plaintiff to establish that the publication was made with actual malice and that he failed to demonstrate that there were facts sufficient to permit a jury to find that the defendants acted with malice. We would affirm.
Chief Judge Cardozo aptly noted in Ostrowe v Lee (256 NY 36, 38): "In the law of defamation, publication is a term of art. * * * A defamatory writing is not published if it is read by no one but the one defamed. Published it is, however, as soon as read by any one else.”
"Absent a communication to some third person, no damage, either actual or presumed, can result. In short, until the publication, the act is not complete in its mischief. * * * Similarly, to constitute actionable slander, the slanderous words must have been spoken in the presence and hearing of some person other than the one slandered. The factor that renders the making of a slanderous statement actionable is its publication” (34 NY Jur, Libel and Slander, § 59).
In 1964, the United States Supreme Court in New York Times Co. v Sullivan (376 US 254) held that the fair comment privilege for reports concerning public officials was mandated by the First Amendment which guarantees freedom of speech and freedom of the press. Thus, a public official who was the subject of a defamatory statement relating to his official conduct could recover for libel only by proving actual malice
Subsequently in 1974 the Supreme Court reassessed the primacy given to the public importance of the subject matter
Following the lead enunciated in Gertz whereby the States were free to define their own standards of liability for defamation of a private individual, the New York Court of Appeals in Chapadeau v Utica Observer (38 NY2d 196, 199) declared: "We now hold that within the limits imposed by the Supreme Court where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably re
On the record herein we conclude that the article complained of is within the sphere of legitimate public concern. It dealt with a judicial proceeding involving a real estate problem in a newspaper which publishes articles of interest to the real estate community. With respect to the fact that the article contains both representations of fact and opinion by the authors, it is noted that "[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advance society’s interest in 'uninhibited, robust, and wide-open’ debate on public issues” (Gertz v Robert Welch, Inc., supra, pp 339-340). As noted in Rinaldi v Holt, Rinehart & Winston (42 NY2d 369, 380): "Opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions, provided that the facts supporting the opinions are set forth. (Buckley v Littell, 539 F2d 882, 893, cert den 429 US 1062; Restatement, Torts 2d, § 566.)”
The context of the article complained of reveals an expression of simple or pure opinion by the authors, defendants herein, whereby they assert personal comment on certain facts which they state. As to such type of expression of opinion the privilege of fair comment applies (see Gertz v Robert Welch, Inc., supra; Restatement, Torts 2d, § 566). In Chapadeau, the Court of Appeals was concerned with libel based upon misstatement of facts. "In order to be deemed privileged, comment on a matter of public interest must be fair, the facts truly stated, and an honest expression of the writer’s real opinion or belief’ (35 NY Jur, Libel and Slander, § 127). As to the facts alleged in the article, defendants in moving for summary judgment respectively declared that the writing "was a reliable account of events” and that in publishing the article there was "no reason to believe that it was not
Accordingly, the order of the Supreme Court, New York County (Fein, J.), entered July 18, 1977, which granted summary judgment to defendants and dismissed the complaint should be affirmed, with costs and disbursements.
Birns, Silverman and Evans, JJ., concur.
Order, Supreme Court, New York County, entered on July 18, 1977, unanimously affirmed. Respondents shall recover of appellant $60 costs and disbursements of this appeal.
. Actual malice included either knowledge that the publication was false or a reckless disregard of its truth or falsity (New York Times Co. v Sullivan, 376 US 254, 279-280).
. The individual’s right to the protection of his own good name "reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system” (Rosenblatt v Baer, 383 US 75, 92 [concurring opn]).
. Mr. Justice Powell in delivering the opinion of the court observed: "This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment” (418 US 323, 325). "The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public ffgure may claim a constitutional privilege against liability for the injury inflicted by those statements” (418 US 323, 332) (emphasis supplied).
. The "public figure” test first formulated in Curtis Pub. Co. v Butts (388 US 130) was reaffirmed (418 US 323, 345). "Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. * * * Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation” (418 US 323, 345, 352).
. See, also, Time, Inc. v Firestone, 424 US 448.
. In Wehringer v Gibbons-Hollyday & Ives (49 AD2d 109, 110) we stated: "Plaintiff-respondent, a shareholder and tenant in a co-operative apartment house * * * commenced an action * * * against * * * the owner, and * * * the managing agent of the building, to recover for water damages to his apartment. * * * Following the commencement of the action, plaintiff ceased to pay the maintenance charges, or rent, for his co-operative”.
. The assumption of the continued viability of the common-law rule is here maintained for pragmatic reasons. "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” (Bavarian Motor Works v Manchester, 61 Misc 2d 309, 311).