Afro-American Publishing Co. v. Jaffe (366 F.2d 649, 1966)

LEVENTHAL, Circuit Judge.

This is an appeal from a judgment in favor of appellee (plaintiff) in an action for libel and for invasion of privacy, based on an article and a photograph in the October 14, 1961 issue of the Washington Afro-American (“Afro”), published by appellant (defendant) corporation. It was stipulated that plaintiff sustained no economic loss as a result of the publication. The court, which tried the case without a jury, found injury to the plaintiff consisting of his disturbance and concern as a result of the publication and awarded $500 as compensatory damages. The court also ruled that the publication was made with malice, said malice being presumed from the nature of the published words and the lack of justification therefor, and awarded punitive damages in the amount of $2000. The court stated that its awards were based on both counts of the complaint, i. e., libel, and invasion of privacy. As to compensatory damages, we affirm. As to punitive damages, we reverse and remand.

The material facts are not complicated and for the most part require no resolution of dispute. Plaintiff, a pharmacist, operates a local drugstore. About eighty percent of his customers are Negroes. He and his wife are white, but his employees are all Negroes. His store is a retail outlet for publications of interest to Negro readers. From 1954 until June 1961, it was one of some 400 retail outlets in the Washington area selling the Afro, a newspaper of some 11,000-12,000 circulation, published twice weekly.

In June 1961 plaintiff telephoned Mr. C. Sumner Stone, editor and manager of the Afro, to discuss headlines he considered inflammatory, and to voice his view that the newspaper was not contributing to a better understanding between the races. The two men had a general conversation, and there was no talk of any cancelation.

In September 1961 plaintiff telephoned the circulation department in order to cancel his handling of the Afro. His call was routed to Mr. Stone, who was responsible for maintaining circulation in addition to news and editorial policy. When Mr. Stone asked why plaintiff wanted to cancel, plaintiff responded that the paper’s headlines and policies were causing racial mistrust and ill feeling and directing animosity against himself. A week or two later Mr. Stone went to the store and asked again why plaintiff wanted to cancel, and was told again that plaintiff thought the paper was spreading racial hatred and distrust. Apparently at this time plaintiff also raised the point that the newspaper had carried a paid advertisement of the Communist Party, and seemed uninterested when Mr. Stone noted that the same ad had been carried by prominent New York and Washington newspapers. Mr. Stone became angry and walked out.

In the October 14, 1961 edition of the Afro, Mr. Stone’s column, “A Stone’s Throw,” was captioned: “One Man’s War in SE Against the Afro.” The subject-matter was the refusal of the proprietor of the named drugstore to continue to handle Afro. Mr. Stone reiterated in his column, what he said he had told plaintiff in conversation, that plaintiff’s action, along with plaintiff’s accusation that Afro was spreading racial hatred and distrust, made plaintiff appear to be a bigot. The column further stated that plaintiff had told Mr. Stone a story illustrating the ignorance of his customers and the low level of intelligence of the people in the neighborhood. Plaintiff’s trial testimony denying this assertion was obviously given credit over Mr. Stone’s testimony. Plaintiff’s witnesses testified that he was not bigoted and enjoyed a good reputation for racial relations; these assertions were given credit and indeed were not disputed.

I

Consideration of the various libel questions presented by this case might not be necessary if the claim of invasion of privacy adequately supported the recovery. A common law action for invasion of privacy is maintainable in the District of Columbia. Its existence is recognized in well-reasoned District Court opinions, and is implicit in Bernstein v. National Broadcasting Co. It represents a vindication of the right of private personality and emotional security, the essence of the interest protected being aptly summarized in Judge Cooley’s perceptive phrase, “the right to be let alone.” The historic 1890 article of Louis D. Brandéis and Samuel Warren stressed the need for solitude and privacy as a counterpoise to the intensity and complexity of contemporary civilization. That was written at a time when privacy was imperiled by the rise and conspicuous success of the yellow journalism of the 19th century. The action is no less imperative under the conditions of today, when privacy is imperiled by the communications explosion, and by a deplorable eruption of all manner of mechanical and electronic devices for snooping.

However, the right of privacy is not an absolute. The Restatement of Torts states that liability attaches to a person “who unreasonably and seriously interferes with another’s interest in not having his affairs known to others.” An action is maintainable even when all statements made are completely true and accurate. Different patterns of interference are reflected in the cases, and a variety of sub-doctrines have evolved. The right of privacy stands on high ground, cognate to the values and concerns protected by constitutional guarantees. But this must be accommodated to the need for reasonable latitude for the selection of topics for discussion in newspapers. That right of the press, likewise supported by constitutional guarantees, is crucial to the vitality of democracy. The courts are called upon here, as elsewhere in the law, to harmonize individual rights and community interests. In appraising challenged violations of privacy a “distinction can be made in favor of news items and against advertising use.”

We think the trial court erred in finding that the case at bar involved an actionable invasion of privacy. When a proprietor of a news vending outlet in a predominently Negro neighborhood discontinues the handling of a newspaper oriented to Negro readers, the matter is appropriate for newspaper discussion, with pictorial accompaniment, without fear of an overhanging action for invasion of privacy.

II

Although his interest in privacy for his actions and racial sentiments did not give plaintiff an immunity from public discussion, he had, we think, a right to responsible newspaper discussion, which does not descend to the level of false, defamatory statements. We now discuss the reasons why we reject appellant’s prayer for dismissal of plaintiff’s libel action.

A

The District Court characterized the charges as “tending to bring the plaintiff into contempt, ridicule and disgrace in the community in which he operated his business.” The facts support this finding. The finding if anything applied a stricter standard of defamation than defendant was entitled to. Under the ultimate and broader standard a publication is defamatory if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community. Moreover, defamation turns on whether the communication or publication tends, or is reasonably calculated, to cause harm to another’s reputation, and it is not necessary for plaintiff to prove that this was its actual result.

Appellant’s publication must be taken as a whole, and in the sense in which it would be understood by the readers to whom it was addressed. The article, captioned One Man’s War in SE Against the AFRO, stated that plaintiff, by canceling his subscription, “would appear to be a bigot,” and that he told a story about a customer’s ignorance which he said illustrated the low level of intelligence of the people in the neighborhood near his drugstore. These false statements were critical in the total impact of the article. The article contained other items that were true, but in the setting already described these only reinforced the defamatory impression. Partial truths are not necessarily even mitigating in this branch of the law, for the defamer may be the more successful when he baits the hook with truth. What counts is not the painstaking parsing of a scholar in his study, but how the newspaper article is viewed through the eyes of a reader of average interest.

It suffices, in support of the judgment, that the column under discussion would be reasonably understood by the average reader in the community concerned to signify that plaintiff is a bigot, racially prejudiced, and scornful of the Negro race.

Appellant contends that as a matter of law the article is not libelous, since Mr. Stone did not flatly state that plaintiff was prejudiced, and because it is not a statement of fact about plaintiff’s conduct but a statement of opinion about his attitude. Where readers would understand a defamatory meaning liability cannot be avoided merely because the publication is cast in the form of an opinion, belief, insinuation or even question. A statement about one’s attitude is defamatory if it tends to lower him in the esteem of the community. See Christopher v. American News Co., 171 F.2d 275 (7th Cir. 1948), where it was held actionable to charge that one is pro-Nazi.

B

Appellant’s arguments that as a matter of law the article is not libelous shade into a contention that the statements are within the scope of a privilege provided by law, and hence are not actionable.

There are two analytically distinct claims of privilege. Although the “public interest” privilege, discussed below, is stressed by appellant’s counsel, what Mr. Stone’s testimony highlights is a defense of privilege based on appellant’s own interest in Afro’s circulation. Following the June 1961 discussion Mr. Stone wrote an article taking philosophical issue with the position then expressed to him by plaintiff. That article did not mention plaintiff’s name or otherwise identify him. The identification and attack came in the fall after the newspaper had been canceled. An effort was made to give this private pecuniary interest of appellant a gloss of public concern with the claim that plaintiff was seeking to interpose himself as a censor and black-out of news. This was barren ground, since the record makes plain that the Afro was available in numerous drugstores within a few blocks of appellant’s premises. There is no claim that plaintiff tried to induce others to drop the distribution of Afro.

Historically a privilege has been marked out for the person who publishes an alleged libel in the bona fide prosecution of his own interests. The interests protected by this privilege include the protection of one’s business. But this is a conditional privilege and the defendant is not protected without regard to the reasonableness of his expression. The privilege is applicable only if the publisher believes the statements to be true, has reasonable grounds for this belief and says no more than reasonably appears to be necessary to protect the interest.

Afro’s business interest justified putting to its readers the fairness of withdrawal of a newspaper oriented to Negro readership by a dealer doing business in a Negro neighborhood. But that interest did not justify calling him a bigot with a low opinion of the intelligence of his clientele, so as to absolve the defamation even if false.

Appellant’s loftier claim of privilege invokes the doctrine of privileged criticism, or fair comment, which permits the publication of comment, although defamatory, on the activities and views of another which are matters of “public concern” or “public interest.” Definition of the range of matters of public concern or interest is a never-ending task of the law. Certain distinctive subcategories have evolved: e. g., the public acts and qualifications of public officials and candidates; the management of educational, charitable and religious institutions; public offerings of a literary, artistic and scientific nature; public offerings of products for use and consumption. The principle underlying these categories, but extending beyond them, proclaims a general privilege of criticism or comment concerning another’s appeal for public support or his participation in public activities.

If the person allegedly defamed has made an appeal to the public, the law allows a wide range of comment and expression. We need not concern ourselves here with the question whether, and to what extent, permissible latitude is governed by the “fair comment” doctrine, which embraces statements of opinion or comment, but not false statements of fact, or by the broader doctrine announced by the Supreme Court as to public officials, who cannot recover even for misstatements of fact in the absence of actual malice. One who enters the public arena must expect latitude in the give-and-take of public debate, extending to sharp and coarse comment, and to excessive and perhaps unwarranted characterization. However, the public interest privilege applicable against one who invites public judgment is no defense to the action brought by plaintiff. He made a personal telephone call to the editor. But he in no sense mounted a public rostrum, not even by a letter expressly or implicitly intended for publication.

The touchstone is not whether the public is interested in plaintiff’s views or conduct, for presumptively that applies to everything in a newspaper. “In some sense each person’s prejudices involve a matter of importance to the whole community. But so to hold would radically alter the law of libel and too severely limit the class of libels for which redress would lie.” See opinion of Judge Washington in support of affirmance, excerpted in the Appendix, which was before us when the petition for rehearing en banc was granted.

The privilege of comment on a product offered to the public is not lost because it incidentally affects the reputation of the producer or distributor. Here, however, there is not an offering by plaintiff to the public, but rather a non-offering qf a service. Certainly there could be no merit in a general approach conferring a “public” attribute on situations because of a supposed public interest in the mere fact that an offering or invitation is not extended to the public. Such an approach would violate general understanding and cause the exception to swallow the rule, since non-offerings obviously far exceed offerings. It would obliterate any reasoned .effort to achieve working principles accommodating diverse interests in this field of law.

In limited instances, like a group boycott, non-offerings may take on a public quality giving rise to privileged criticism. Here the plaintiff did not offer to the public his views or reasons for failing to offer the product or service. There is nothing in the record to show that the discontinuance of the paper was presented or appeared to the public as other than a conventional business decision.

The discontinuance by this small retailer was visible to the public in a limited sense, and hence his actions could be depicted without violating his privacy. But his views were not presented to the public, and appellant’s defamatory comment concerning those views is not justified either by appellant’s private interest, as we have already noted, or by a broader public-interest privilege.

It has been suggested that an expansion of the common law of the public interest privilege is required in the light of New York Times v. Sullivan, and that it protects discussion of all items of public interest, and notf merely items concerning public officials. See Note, First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L.J. 642 (1966). If New York Times has application, it would be our duty to do what the Supreme Court did in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), and accompany the remand with appropriate indication of the proper principles to govern the new trial, and any reassessment of the facts.

Undoubtedly New York Times is a seminal decision. Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Rosenblatt v. Baer, supra; Linn v. United Plant Guard Workers, 383 U.S. 53, 65, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). The line of growth from the New York Times taproot seems destined to extend beyond the public official concept. The only extension to private persons that has ever been hinted at by the courts, so far as we are aware, is to the “participant in public debate on an issue of grave public concern.” Friendly, J., concurring in Pauling v. News Syndicate Co., 335 F.2d 659, 671 (2d Cir. 1964). Justice Brennan confined Rosenblatt to the issue of public position, as the only issue briefed and argued, and stated (383 U.S. at 86 n. 12, 86 S.Ct. at 676): “We intimate no view whatever whether there are other bases for applying the New York Times standards— for example, that in a particular case the interests in reputation are relatively insubstantial, because the subject of discussion has thrust himself into the vortex of the discussion of a question of pressing public concern.”

Recently the Eighth Circuit held in Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188, June 21, 1966, that the implications of New York Times made it applicable to Professor Pauling, who by “public statements and actions, was projecting himself into the arena of public controversy” and “attempting to influence the resolution of an issue” of importance and controversial nature, and whose prominence placed him in a “position of some influence on the problem’s resolution.” The court concluded that in regard to freedom of criticism no rational distinction can be drawn between government officials and private citizens seeking “to lead in the determination of national policy.” A significant leader, including the head of a pressure group, who “seeks to realize upon his capacity to guide public policy” has no greater immunity from criticism than “his counterpart in public office.”

There is no need to reiterate Judge Blackmun’s exhaustive review of the cases. We note with interest that after reviewing decisions applying New York Times “where a person of prominence involves himself in a matter of great public concern,” he adds (362 F.2d at 197):

There are, of course, fact situations where the courts understandably have refused to apply the principle. These include cases where the subject, although perhaps a public figure, did not conduct himself or speak out on a matter of public import [citations], or where the subject was a person prominent only in another country [citations] .

We conclude that New York Times, as written and likely to be extended, does not and will not preclude recovery, even in the absence of malice, by a man whose role is as non-public as plaintiff’s, by a man who has not mounted a public rostrum, made an appeal to the public, sought or received public funds, offered a service or product for public use or comment, or organized a boycott or other group activity by members of the public. As Justice Stewart noted, concurring in Rosenblatt at 383 U.S. at 92-93, 86 S.Ct. 669, the constitutional values involved in the law of defamation include not only First Amendment freedoms, but also the right, inherent in the essential dignity and worth of every human being, to protection of reputation.

C

We turn now to the suggestion that even though this case does not permit invocation of the public interest privilege as a complete defense, the public interest in broad discussion of the subject-matter of race relations is significant enough to warrant a protective rule precluding recovery except at the instance of a plaintiff who can show special, pecuniary damage. In effect it is suggested that this court fashion an extension of the ruling in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 128 F.2d 457, cert. denied, 317 U.S. 678, 63 S.Ct. 160, 87 L.Ed. 544 (1942), discussed below.

In the common law of defamation the pecuniary damage requirement was imposed only in the case of oral slander, save for certain exceptions. In file common law of libel damage was said to be “presumed” from the defamation, so that no pecuniary damage need be shown. The distinction has historical roots.

The requirement of pecuniary damages for slander accompanied the gingerly reception of the slander action in the common law courts. In the 13th and 14th centuries actions for defamation were common in the seignorial courts, where the besmirched reputation could be cleared before the very persons who heard it attacked. When these courts decayed, ecclesiastical courts dealt with defamatory utterances as a sin, involving, however, a kind of penance which also provided a clearance of reputation. In the 16th century the common law courts slowly accepted tort actions for slander, but, cognizant of jurisdiction already staked out by the ecclesiastical courts, they held that defamation was only a “spiritual” matter unless “temporal” damage was proved.

This requirement of pecuniary damage, which historically did not preclude vindication of honor in other tribunals, survived notwithstanding the collapse of these tribunals. Apart from certain limited exceptions, it is embedded deep in the law of slander notwithstanding re-suiting injustice, as appears from prohibition of an action based on emotional distress even when resulting in serious illness. Ameliorative rulings and ex-ceptions serve to cabin yet confirm the rule.

Stricter rules of liability stamped the law of libel, which developed in the 17th century after the emergence of the printing press. In view of the importance of providing a judicial remedy, in order to avoid resort to self-help and resultant breach of the peace, no showing of actual damage was required as a condition of a libel action. This consideration, and others discussed below, seem relevant to our times. The pecuniary damage requirement may be too deeply embedded to pull out of the law of slander, but it should not be injected into the law of libel.

In the case before us the bigotry libel is apt to cause pecuniary damage because the Afro is addressed to Negroes, who are the plaintiff’s clientele. But plaintiff need not show any pecuniary damage in order to establish the libel and recover nominal damages, or compensation for nonpecuniary damage supported by the proof. In Peck v. Tribune Co., 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960 (1909), Justice Holmes rejected incorporation of a special damage requirement into the law of libel. We adhere to the rule that no special, i. e. pecuniary damage is necessary. Nor do we consider that a special damage requirement is interposed even assuming facts extrinsic to the publication are required to establish the libel. The allowance of nominal damages performs a vindicatory function by enabling the plaintiff to brand the defamatory publication as false. The rule that permits satisfaction of the deep-seated need for vindication of honor is not a mere historic relic, but promotes the law’s civilizing function of providing an acceptable substitute for violence in the settlement of disputes. The judgment also partakes of the nature of relief in equity by subduing, or at least minimizing, the spread of harm t