Sweeney v. Schenectady Union Pub. Co. , 122 F.2d 288 ( 1941 )

CHASE, Circuit Judge.

Jurisdiction in this suit for the libelous publication by the defendant of the statements concerning the plaintiff which will presently be set forth rests upon diversity; the plaintiff being a resident of Ohio and the defendant a New York corporation. The appeal is from an order dismissing the complaint on motion after the filing of an answer consisting of a general denial; special matter in mitigation of damages ; and the truth of the matter printed coupled with the right to comment fairly thereon. No special damages were alleged and the question before us is whether the publication, which on this appeal must be taken for granted as having actually been made and having been false, was libelous per se. O’Connell v. Press Publishing Co., 214 N.Y. 352, 108 N.E. 556.

The complaint alleged that the plaintiff, a representative in Congress from Ohio and a lawyer by profession, who was a member of the bar in good standing in the State of Ohio, had been “injured in his good name, fame and reputation, in the conduct and execution of his official duties as a duly elected and chosen representative of the people of the State of Ohio in the Congress of the United States, in pursuance of his profession as a practicing attorney in good standing before the Bar in the State of Ohio, in his standing in the community wherein he resides, and in the high regard, respect, confidence and esteem he has hitherto enjoyed among his associates both in the Congress of the United States and in the legal fraternity and elsewhere” by the publication by the defendant in a newspaper called the “Schenectady Union Star” which is widely circulated and read “in the State of New York and the states of the United States and among the people thereof” of the following:

“A hot behind-the-scenes fight is raging in Democratic congressional ranks over the effort of Father Coughlin to prevent the appointment of a Jewish judge in Cleveland.

“The proposed appointee is Emerich Burt Freed, U. S. District Attorney in Cleveland and former law partner of Senator Bulkley, who is on the verge of being elevated to the U. S. District Court.

“This has aroused the violent opposition of Representative Martin L. Sweeney, Democrat of Cleveland, known as the chief congressional spokesman of Father Cough-lin.

“Basis of the Sweeney-Coughlin opposition is the fact that Freed is a Jew, and one not born in the United States. Born in Hungary in 1897, Freed was brought to the United States at the age of 13, was naturalized 10 years later.

“Irate, Representative Sweeney is endeavoring to call a caucus of Ohio Representatives December 28 to protest against his appointment.”

The matter so published was received by the defendant for publication from an organization known as United Feature Syndicate, Inc. It was published in much the same form in many other newspapers in this country and the resulting libel suits brought in various courts by this plaintiff have been numerous. In some instances motions to dismiss the complaint on the ground that the publication was not libelous per se have been granted; in some such motions have been denied. Decisions in other jurisdictions, however, are not only conflicting but are for us inconclusive since they have turned on the application of the libel law of states other than New York while here we must be governed by the law of the State of New York. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. We are not concerned, however, with any libel upon the plaintiff as a lawyer since no reference was made in the publication to that profession of his. Keene v. Tribune Association, 76 Hun 488, 27 N.Y.S. 1045.

The false statements published concerning him neither separately nor together make him out to be a character more offensive to right-thinking people than he would be as the spokesman in Congress of Father Coughlin; who opposed the appointment of a man named Freed to the office of United States District Judge because Freed was a Jew and one not born in the United States; and who was angry about the matter to the point of attempting to have Ohio congressmen protest in caucus against Freed’s appointment.

But, all else aside, they do clearly attribute to him the desire and purpose to try to prevent the appointment of Freed to the office mentioned for the reason that Freed is a Jew who was foreign born. The context does not fairly permit reading the language as making the foreign birth of Freed the all sufficient cause of the plaintiff’s opposition to his appointment but rather the contrary by stressing the fact that he was a Jew whose foreign birth apparently but gave an additional basis for plaintiff’s opposition. And so the decisive question to be determined on this appeal is whether or not the publication of such false and unprivileged statements concerning the plaintiff within the last few years in the places as alleged in the complaint may be said as a matter of law not to have created any liability in the absence of special damages.

The New York law, as stated in Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217, 218, makes libelous per se the publication of “words which tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society.” To the same effect is Sydney v. MacFadden Newspaper Pub. Corp., 242 N.Y. 208, 151 N.E. 209, 44 A.L.R. 1419. This is in general accord with the definition found in the Restatement of the Law of Torts. See § 559.' The test is whether right-thinking persons would be reasonably expected to be induced by the publication to believe that it truthfully represented the plaintiff’s attitude on the subject of Freed’s appointment and would be likely to regard him as a consequence in such a way that his reputation was injured in one or more of the respects above noted. It is, of course, not easy to apply this general test to a case of this nature. Opinions or prejudices concerning the matter in hand might well lead to different conclusions.

Some principles established in New York libel law are especially helpful in arriving at a just decision. One of them is that a false statement need not necessarily charge the violation of any law to be libelous per se; and another is that, when made of a public official, false accusations which may well lead right-thinking people to believe him unworthy of public trust and confidence are libelous per se. Bennet v. Commercial Advertiser Ass’n, 230 N.Y. 125, 129 N.E. 343. And still another is that an unprivileged, published falsehood need not make all, or even a majority of those who read it think the less of the person defamed. It is enough if a noticeable part of many who read it are made to hate, despise, scorn or be contemptuous of the person concerning whom the false statements have been published. Peck v. Tribune Company, 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960, 16 Ann.Cas. 1075; Restatement, Torts, § 559(e).

And certainly the time and place of publication must be given due weight and effect. This plaintiff by being accused of trying to deprive a man of an appointment to public office because, presumably both in race and religion, he was Jewish would, intolerance being what it is, no doubt gain approval and increased respect in some quarters; and in others, where only the hit bird flutters, there would be indifference; but in a country still dedicated to religious and racial freedom decent, liberty-loving people still are present in great numbers and still are greatly offended by the narrow-minded injustice of the bigots who see individuals only en masse and condemn them merely because their ancestors were of a certain race or they themselves are of a certain religion. Those who hate intolerance are prone to regard the person who believes in and practices acts of intolerance with aversion and contempt. And in these times when it is universal knowledge that one foreign dictator gained his power by practices which included large-scale, unreasonable Jewish persecutions which have played an important part in making his name an anathema in many parts of this country the publication of statements such as those alleged may well gain for the person falsely accused the scorn and contempt of the right-thinking in appreciable numbers. Freedom of speech is, as it always has been, freedom to tell the truth and comment fairly upon facts and not a license to spread damaging falsehoods in the guise of news gathering and its dissemination.

Moreover, in places where Jews make up a sizeable portion of the population, as they are known to do in part of the territory in which it is alleged that the defendant’s newspaper circulated when the publication was made, it may be taken for granted that there will be an appreciable number who will hate or hold in contempt one who discriminates against a Jew merely because he is a Jew whether born in this country or not. A majority of the court is of the opinion that the complaint is sufficient under the principles above stated and that the defendant should be required to meet it on the merits.

Order reversed and cause remanded for trial. '