Davis v. Schuchat

• Decision Date: 22 January 1975
• Docket Number: No. 72--1799,72--1799
• Citation: 166 U.S.App.D.C. 351,510 F.2d 731
• Parties: Leonard DAVIS v. Theodor SCHUCHAT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 731

510 F.2d 731

166 U.S.App.D.C. 351

Leonard DAVIS v. Theodor SCHUCHAT, Appellant.

No. 72--1799.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 25, 1974.

Decided Jan. 22, 1975.

Lanny J. Davis, Washington, D.C., with whom Robert A. W. Boraks, Washington, D.C., was on the brief, for appellant.

Morris B. Abram, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Leonard H. Becker and Daniel P. Levitt, Washington, D.C., were on the brief, for appellee.

Clark R. Mollenhoff, Washington, D.C., filed a brief as amicus curiae.

Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit Judges.

McGOWAN, Circuit Judge:

The District Court, sitting without a jury, awarded damages in an action for slander. This appeal from that judgment raises a question as to the degree of protection afforded by the First Amendment to one who describes himself, as does appellant, to be an investigative journalist. There are also issues as to the standard of liability, if liability is to be imposed at all, and the propriety of punitive damages. For the reasons hereinafter appearing, we affirm.

I

Plaintiff-appellee, Leonard Davis, is the founder, a director, and a major shareholder of the Colonial Penn Group, an insurance company headquartered in Philadelphia, Pennsylvania. Colonial Penn provides group insurance coverage for two associations of retired persons--the American Association of Retired Persons (AARP) and the National Retired Teachers Association (NRTA). The latter, of which appellee is the honorary president, is affiliated with the National Education Association (NEA). Appellee's work in insurance, especially for the elderly, has led to a number of philanthropic, educational, and charitable positions, including the chairmanship of the board of directors of the Gerontology Center at the University of Southern California, and the chairmanship of the board of the Fund for the City College of New York.

At one time, appellee served as a director of Dental Insurance Plan, Inc. (DIP), a group insurance plan in New York. In 1963, some three years after his resignation from the DIP board, five officers of DIP were charged with criminal fraud under the laws of New York. They were subsequently convicted on their pleas of guilty. In 1965, appellee was indicted and tried in the United States District Court in New York on a charge that he committed perjury when he testified before the New York grand jury looking into the affairs of DIP. The district judge, sitting without a jury, dismissed one count at the close of the Government's case, and on the other count returned a verdict of not guilty.

Defendant-appellant, Theodor Schuchat, is a free-lance feature writer who specializes in matters concerning health, education, and welfare. Sometime in 1963, Schuchat became interested in the AARP and its relationship with appellee and Colonia Penn, and at that time he began keeping a file about appellee. In 1964 Schuchat began a more active investigation with the intent of writing a story about appellee and Colonial Penn.

The District Court's Findings of Fact and Conclusions of Law in their entirety, omitting only the jurisdictional finding, are as follows:

2. Plaintiff is a public figure within the meaning of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and subsequent decisions.

3. Defendant is an investigative reporter and feature writer. He does not usually write 'spot news,' and 'spot news' is not involved in this case.

4. In early 1964, defendant began to maintain a 'watching brief' or file on plaintiff. In early 1970 defendant decided to try to develop an article relating to plaintiff and to certain organizations with which plaintiff is associated--Colonial Penn Group, the American Association of Retired Persons ('AARP'), and the National Retired Teachers Association ('NRTA'). NRTA is affiliated with the National Education Association ('NEA').

5. In early July 1970, by telephone, defendant told Dr. Glen Robinson, an NEA official, that plaintiff 'had been convicted of a felony in New York.'

6. On July 17, 1970, defendant repeated this statement orally to Dr. Robinson and to Mr. Jack Tennant, an associate of Dr. Robinson at NEA.

7. The statements by defendant were false. They were slanderous per se. The statements were made maliciously and, within the meaning of New York Times and subsequent decisions, in reckless disregard of the truth, pursuant to defendant's admitted technique of 'throwing a lot of things out in an interview just to get a response.'

8. Plaintiff has not asked for any special damages, but has asked for compensatory and punitive damages. Plaintiff has been injured by defendant's false statements, but it is difficult to fix a monetary amount that will compensate him for that injury. In view of that difficulty, and in view of the relative financial situations of the parties, the Court will grant nominal compensatory damages in the sum of $1.00 and punitive damages in the sum of $1,500.00. The latter award takes into consideration the considerable expense of this case which plaintiff can probably well afford, and defendant ill afford.

II

The first and principal issue raised on this appeal is that the First Amendment mandates a complete immunity from liability for a slander made to a limited number of people by a reporter in the ordinary course of his preparations for a news story on a subject of general or public interest. The claim is, in other words, that it was error for the District Court to apply in this case the standard of liability first formulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). ¹

It is perhaps enough to point out that this is directly contrary to the position taken by appellant in the trial court. There it was urged by appellant that the New York Times standard was the applicable and governing legal rule, and should be applied by the court to the evidence before it. This is crystal clear from a reading of the trial transcript, and nowhere more so than in defense counsel's summation after the evidence was in when he says (Tr. 235), 'So I ask the Court in light of the law, to apply New York Times.' ² The court did so and now appellant tells us that it should be reversed for having done so. We are not, under these circumstances, obliged to take notice of the point at all: and it would require the most palpable and egregious error to cause us in these circumstances to reverse the District Court for the reason now urged. We are not persuaded that such reversal is required in the interests of justice.

The proposed new theory is grounded on the concept that the New York Times doctrine reflects a balancing between First Amendment interests and the probability of a given statement causing serious damage to a person's reputation. Appellant argues that the First Amendment interests are more important here than in the Times situation because '(a) an investigative reporter is particularly vulnerable to defamation actions and, hence, to self-censorship pressures; and (b) in these circumstances, where the alleged defamatory statements were made prior to publication, there is a serious danger of a constitutionally impermissible prior restraint.' (Appellant's brief p. 21). By finding this 'extra' First Amendment importance, appellant thinks to analogize his situation with the absolute immunity granted judges and legislators because of the 'extra First Amendment interests' present in their situation.

The assertion that there is some special danger of self-censorship because of the allegedly peculiar nature of an investigative reporter's job, necessarily assumes that the investigative reporter must be allowed to make statements in interviews that he (or anyone else) would not be permitted to say in a 'final context.' We recognize that comment upon matters of public interest is entitled to greater protection than comment on matters of purely private interest, but we fail to see why a comment on a matter of public interest should be any more protected in the private sphere than it is in the public arena.

In an attempt to support his position, appellant argues that statements made in private cause less harm and are more easily rebutted than public statements, and that therefore statements made in private are entitled to greater protection. Appellant's own situation, however, points up why this is an unacceptable argument. He made his statements to a business associate of appellee, where such statements, if unrebutted, could do perhaps their greatest damage. Further, it was only by chance and the good will of the listener to the defamatory statements that appellant was given an opportunity to rebut the allegations made against him.

Appellant also argues that the fear of a slander action will operate upon the investigative reporter in some way as a prior restraint. The fear of a libel action subsequent to publication equally acts as a deterrent, however, and that deterrence clearly is permitted by New York Times. Again, the argument must rest upon the assertion, which we do not accept, that freedom of the press requires that reporters be allowed to assert in private what they would be subject to liability for if said in public media. ³

III

The District Court found appellee to be a public figure; and measured liability by reference to New York Times, which as noted above, appellant pressed it to do. Appellee asserts on appeal that the judgment under review can be sustained within its own terms, inasmuch as the proof adduced by it in the trial court satisfies the New York Times standard. Appellee continues to say here, as he did in the District Court that he is not really a public figure, and that, whether he was or not, the trial court did not need, in order to find liability on this record, to be guided by the more rigorous standard...