Venn v. Tennessean Newspapers, Inc. (201 F. Supp. 47, 1962)

WILLIAM E. MILLER, Chief Judge.

This action was brought by plaintiff, a citizen and resident of Miami, Florida, to recover compensatory and punitive damages on account of the publication by defendant, a Tennessee corporation, of certain allegedly libelous newspaper articles.

Jurisdictional prerequisites are satisfied by the diversity of citizenship of the parties and the requisite jurisdictional amount. 28 U.S.C.A. § 1332.

By agreement of the parties the case was tried to the Court without a jury.

At the time of the publication of the articles upon which the suit is predicated, and for a number of years prior thereto, plaintiff Robert G. Venn was engaged in advertising and publicity promotion, principally in radio and television fields. He had occupied positions of responsibility and authority in both radio and television and had acquired a reputation for competency, experience, responsibility and integrity in radio and television advertising and promotion, and also in the field of management. The defendant is, and was at all times material herein, owner and publisher of the “Nashville Tennessean”, a metropolitan daily newspaper with extensive circulation throughout Middle Tennessee and with additional circulation in other states and in foreign countries.

Among his other activities, plaintiff had originated, developed and produced a type of television program which had become known to the public as the “Talkathon”, a program on which a political candidate would appear for prolonged periods of time without interruption to receive and answer questions submitted by the public viewers. In the summer of 1954, the defendant, through the Nashville Tennessean, vigorously supported Senator Estes Kefauver in a contest with Congressman Pat Sutton for the Democratic nomination for United States Senator from Tennessee. During the campaign the plaintiff Venn was engaged to conduct several television “talkathons” for Congressman Sutton.

After general averments of the historical background, the complaint alleges that the defendant, “ * * * as a means of electing its candidate, wilfully set out in its newspaper to destroy, throughout Tennessee, plaintiff’s business and professional reputation and standing, also his personal reputation, standing and character, and also the good will, value and standing of the Talkathon, well knowing that plaintiff would tend to be similarly damaged throughout the nation. Accordingly, at or about the time of the Memphis Talkathon it commenced a planned and deliberate attack on plaintiff through its newspaper.” The complaint then sets out eight counts, declaring respectively upon publications in the Nashville Tennessean in its issues of July 3, 15, 16, 17 and 30, and August 2, 3 and 6, 1954.

It is the theory of the plaintiff that the publications were false, defamatory, and libelous per se; that they were made without probable cause and with actual malice; that they were made with reckless disregard of the true facts and of the injury which would naturally and necessarily result to plaintiff and his business; and that the publications were not privileged. On the other hand, defendant insists that the publications were not subject to the construction attributed to them by the plaintiff and were not libelous per se; that the publications, when properly interpreted, and when considered in context, were true; that the publications were privileged; that the action is barred by the Tennessee statute of limitations; and that plaintiff failed to comply with the requirements of Sec. 23-2605, Tennessee Code Annotated, in that he failed to serve legal notice on defendant prior to instituting suit.

While there are numerous questions of law and fact involved, the primary and crucial issue in the case is whether the publications, when properly construed, are libelous, and if so, whether they are actionable per se or per quod. At the outset, therefore, the several publications must be considered at some length and their true meanings determined in accordance with certain established and recognized rules of construction.

It is elementary that a publication claimed to be defamatory must be read and construed in the sense in which its readers would ordinarily understand it. Black v. Nashville Banner Publishing Co., 24 Tenn.App. 137, 144, 141 S.W.2d 908. Another basic principle of significance in the present case is that the determination of whether an article is libelous per se must be made from the four corners of the article itself without reference to other publications and without reference to extraneous facts. 33 Am.Jur., Libel and Slander, Secs. 84 and 87.

The proposition is also well established that a direct assertion is not required to constitute a libel, for the libelous meaning may be expressed by signs, suggestions, inferences, or by implication — oftentimes more effectively than by a direct statement or assertion. 33 Am.Jur., Libel and Slander, Sec. 9, P. 43.

It is the plaintiff’s insistence that the several publications here involved when read and considered with these principles in mind necessarily conveyed the meaning, first, that the plaintiff Venn at the time he was in Tennessee conducting the talkathon and prior thereto, was an associate both in business and social circles of criminals, gangsters, mobsters, and other elements of the underworld, and second, that plaintiff Venn, in conducting the talkathon in the Sutton campaign against Kefauver, was a “tie-in” or connection between Sutton and such criminal elements, the latter supporting Sutton because of a desire for revenge on account of exposures by Kefauver in connection with the Senate Crime Committee investigations. The defendant on the other hand denies that the publications are subject to the meanings and imputations attributed to them by the plaintiff and says that when they are read in their entirety no meaning is conveyed or could reasonably be conveyed to the average newspaper reader that the plaintiff was or had been an associate of gangsters or criminals or a “tie-in” or connection with criminal elements in conducting the talkathon in the Kefauver-Sutton campaign. The first question, therefore, to be disposed of is the meaning of the several publications.

After careful analysis and consideration of the eight publications declared on, the Court is compelled to the conclusion that the publications of July 15 and 17, 1954 are libelous per se. The remaining six articles dated respectively July 3, 16 and 30 and August 2, 3 and 6, 1954 are so ambiguous and uncertain in meaning insofar as the plaintiff is concerned that it must be held that they are not libelous per se and that an innuendo must be pleaded and proved to establish a defamatory imputation with respect to the plaintiff. 53 C.J.S. Libel and Slander § 162(2). In addition, before such articles could be actionable it would be necessary for the plaintiff to plead and prove special damages resulting from such publications. Railroad v. Delaney, 102 Tenn. 289, 295, 52 S.W. 151, 45 A.L.R. 600; Fry v. McCord Bros., 95 Tenn. 678, 689, 33 S.W. 568; Bank v. Bowdre Bros., 92 Tenn. 723, 734, 23 S.W. 131. As will' be pointed out hereinafter, the plaintiff has failed to prove special damages, with the result that his right of recovery on the six publications not libelous per se must be denied without consideration of whether such publications can be shown by proof to have a defamatory meaning as to the plaintiff.

The articles considered by the Court to be uncertain and ambiguous in meaning have one central and overriding theme, i. e., that the gangster and underworld elements which had been exposed by Kefauver as a result of the investigations of the Senate Crime Committee were determined to defeat Kefauver in the primary election by supporting the candidacy of his opponent, Congressman Sutton, and that to accomplish this purpose such gangster and underworld elements were pouring money into the state to promote and support the Sutton campaign. Some of the articles were written by the defendant’s own correspondents and reporters covering the campaign, others were written by the defendant’s correspondents in other states or localities, some were written by independent columnists, such as Drew Pearson, and other articles were written by other newspapers and carried by the defendant, such as the St. Louis Post Dispatch and the New York Daily News. It would unduly prolong this opinion to recite the many statements of the various articles, most of which are excessively prolix, rambling and discursive, but there can be no doubt that the one point that the articles sought to establish and to impress upon the public was that Sutton was being supported in his efforts to unseat Kefauver by the gangster elements of the country and that his campaign was being fed large amounts of money from the underworld for this purpose. With this central theme the articles make repeated references to the investigations of the underworld made by the Senate Crime Committee and headed by Senator Kefauver, to the fact that Kefauver investigated, among others, the Continental Press Service, a national racing wire service, at one time headed by Arthur B. (Mickey) McBride, to the fact that the Continental Press Service was put out of business as a result of such investigations, to McBride’s background and activities, to the FCC hearings concerning radio station permits in which McBride was interested, and to many other subsidiary facts. Insofar as the plaintiff is concerned, while there are a few inaccurate and misleading statements as to his previous activities, for the most part in some of the headlines, the articles correctly set forth that the plaintiff was a former associate in business with McBride in that he managed radio station WMIE in Miami which was in part owned by McBride, and that the plaintiff was taking a leading part in the Sutton campaign, principally as a radio and television expert in conducting the talkathon, a publicity device which had been invented by the plaintiff and which he had promoted and used extensively in other election campaigns in various parts of the country.

Construing the several articles in their entirety and on the basis of the entire language used, it is apparent to the Court that the most favorable view insofar as the plaintiff’s case is concerned is that the publications have a dual or ambiguous meaning and, therefore, that it cannot be concluded from the face of the articles themselves that they are libelous. It may be that an average newspaper reader would infer from the articles that the plaintiff Venn was a “link” or “tie-in” between the Sutton campaign and criminal elements in the sense that he was a conscious and knowing tool of the underworld itself in its efforts to defeat Kefauver, and for this reason that the plaintiff was in Tennessee to conduct the talkathon and otherwise to aid and assist the Sutton cause. On the basis of this interpretation, which the plaintiff says is the only reasonable one, the articles would, of course, be defamatory per se and there would be no doubt that they would be actionable as such without further proof or explanation.

But upon carefully reading and analyzing the various articles, it becomes immediately apparent that an average newspaper reader could reasonably conclude that the plaintiff Venn had simply been employed by Sutton to conduct the talkathon, a device which plaintiff had invented and which he owned, perhaps at the suggestion of McBride because of McBride’s knowledge of his experience in this field, and that any support of the talkathon from the underworld or any money supplied to the Sutton campaign by criminal elements was not necessarily with the knowledge of Venn. In other words, an average reader could very plausibly infer that Venn was participating in the Sutton campaign because it was his business to conduct talkathons in election campaigns and that he was conducting the talkathon in this instance as the result of a normal business transaction. In this way, of course, the plaintiff Venn would in a sense be a “link” or “tie-in” between the underworld and the Sutton campaign, yet he would not be a conscious or knowing “link” or “tie-in” and, consequently, he would be free of any blameworthiness or reprehensible conduct insofar as his activities in the campaign were concerned. Therefore, the mere implication in the articles complained of that plaintiff was such a “link” or “tie-in” would not necessarily be defamatory. In this connection, it is to be noted that in the several publications the plaintiff is never referred to as a gangster or as a part of the underworld. On the other hand, he is many times referred to as the inventor of the talkathon, as an expert in the television and radio field, and as a man who had successfully promoted the use of the talkathon as a publicity device in political elections. While McBride is generally depicted in the various articles as an unsavory character and it is stated that Venn was a former associate of McBride, the articles when read in their entirety make it clear that the association was by reason of Venn’s having managed a Miami radio station in which McBride owned an interest. This was a correct statement of fact. Yet it does not necessarily follow therefrom, nor would an average newspaper reader necessarily conclude, that Venn, because of such business connection, was a tool of McBride, or that he was a part of the underworld, or that he was in Tennessee participating in the Sutton campaign as a knowing or conscious link with the underworld rather than in his capacity as a legitimate business man selling his services as a television and radio expert.

The publication of July 15, 1954 reads in part:

“KEFAUVER LASHES

SUTTON’S BACKERS

“Says Opponent Gets Support of Criminals Oil Rich Texans

“KINGSTON, Tenn. — Sen. Estes Kefauver declared at a rally of Roane County Democrats here last night that his opponent is receiving the support of nationwide criminal elements and oil-rich Texans.

* *****

“In an hour-long speech, the senator tied in Sutton with nationwide criminal elements this way:

“ ‘You know we all like to be friendly with everybody. But sometimes we are known by the enemies we make. Likewise we are known by the company we keep.’

“Then Kefauver proceeded to describe the company that is now being kept by Sutton.

“Referring to activities of the senate crime investigation committee, which he headed several years ago, in breaking u