Carson v. Allied News Co.

• Decision Date: 08 March 1976
• Docket Number: No. 75--1763,75--1763
• Parties: John W. CARSON and Joanna Holland, Plaintiffs-Appellants, v. ALLIED NEWS COMPANY, an Illinois Corporation, and National Insider, Inc., an Illinois Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 206

529 F.2d 206

John W. CARSON and Joanna Holland, Plaintiffs-Appellants, v. ALLIED NEWS COMPANY, an Illinois Corporation, and National

Insider, Inc., an Illinois Corporation,

Defendants-Appellees.

No. 75--1763.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 15, 1975.

Decided Jan. 23, 1976.

Rehearing and Rehearing En Banc

Denied March 8, 1976.

Paul M. Levy, Chicago, Ill., for plaintiffs-appellants.

Burton Joseph, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

The principal issue on appeal is whether summary judgment was properly entered against 'public figures' prosecuting a libel suit or whether 'actual malice' was shown with convincing clarity to warrant a jury determination of that issue under New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

I.

The plaintiffs John W. Carson and Joanna Holland brought this diversity action, seeking compensatory and punitive damages from the defendants Allied News Company and National Insider, Inc., for an allegedly libelous article which appeared in the April 9, 1972 issue of the National Insider, a tabloid periodical. The front page of the periodical carried the headlines 'N.B.C. Pays For Carson's Love Life$ Move To Hollywood Is Just So Johnny Can Be Near Miss Holland.' The story, under the by-line of Evart Alimine, the nom de plume of Evan Crawley, a full time staff writer employed by the defendants, carried the headline, 'Johnny Carson Is Moving 'Tonight Show' To Hollywood So He Could Be Closer To The Woman Who Broke Up His Marriage.'

The original complaint also named six distributors of the National Insider as parties defendant, one of whom was a citizen of New York and one a citizen of California. In the original complaint plaintiffs alleged that they were New York residents and in an amended complaint that they were California residents.

The defendants moved for judgment on the pleadings or, in the alternative, for a summary judgment. On November 29, 1973, the district court granted the motion for summary judgment for the reasons that 'this Court believes that the plaintiffs cannot prove actual malice in the Times sense' and 'the plaintiffs must allege and prove 'special damages."

On appeal to this court, we vacated the judgment because of absence of complete diversity and remanded to 'allow amendments to cure the jurisdictional defects.' 511 F.2d 22 (7th Cir. 1975).

Upon remand the non-diverse defendants, and later all of the distributor defendants, were voluntarily dismissed from the suit pursuant to Fed.R.Civ.P. 41(a)(2). The remaining two defendants then moved for re-entry of summary judgment or in lieu thereof for judgment on the pleadings. On July 22, 1975, the district court re-entered its November 29, 1973 order granting summary judgment to the defendants.

The plaintiffs have appealed and seek to have the summary judgment reversed so that the cause of action may proceed on the merits.

The defendants seek to support the district court judgment on the ground that their article was based upon the facts contained in a newspaper story written by Bruce Vilanch and contained in the February 28, 1972 edition of Chicago Today, a former daily newspaper published in Chicago. They contend that 'actual malice' is lacking because they believed the Vilanch's article was true.

II

The basic New York Times rule provides that the First and Fourteenth Amendments prohibit a public official from recovering damages in a civil libel action for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice--that is, with knowledge that it was false or reckless disregard of whether it was false or not. ¹

The rule applies also to public figures--those who command a substantial amount of independent public interest at the time of the publication of the defamatory statements, attained through position alone or through purposeful activity amounting to a thrusting of one's personality into the vortex of an important public controversy. ² Some persons occupy positions of such pervasive power and influence that they are deemed public figures for all purposes and in all contexts. Other persons thrust or inject themselves to the forefront of particular public controversies, inviting attention and comment, or are drawn into public controversies. Contrary to the all-purpose public figure, those latter persons become public figures for a limited range of issues or for a limited time. ³ Nevertheless, both the all-purpose and the part-time public figures are governed, in the case of prosecuting libel actions, by the New York Times rule.

At common law, actual malice was shown by ill will, evil or corrupt motive, intention to injure, hatred, enmity, hostility, or spite. Except for requiring that it be shown with convincing clarity, New York Times did not define 'actual malice' beyond saying that it was 'with knowledge that . . . (the defamatory falsehood) was false or with reckless disregard of whether it was false or not.' ⁴ Later cases have defined it as making statements with a high degree of awareness of their probable falsity, ⁵ or where the defendant entertained serious doubts as to the truth of the statements. ⁶

'Actual malice' has become a term of art to provide a convenient shorthand for the New York Times standard of liability. It is quite different from the common law standard of 'malice' generally required under the state tort law to support an award of punitive damages. Whereas the common law standard focuses on the defendant's attitude toward the plaintiff, 'actual malice' concentrates on the defendant's attitude toward the truth or falsity of the material published. ⁷

Examples of reckless disregard expressly given by the Supreme Court include where a story is fabricated by the defendant, is the product of his imagination, is based wholly upon an unverified anonymous telephone call, or where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. ⁸

III

The plaintiffs admit that they are both 'public figures.' ⁹ The amended complaint alleges that plaintiff Carson 'has been an entertainer and has earned his livelihood as such primarily in the television industry' and that he 'enjoyed an excellent name and reputation both internationally and throughout the United States as being one of the more popular and outstanding practitioners of his profession.' Carson is an all-purpose public figure.

The other plaintiff, Joanna Holland, subsequent to the filing of this action was married to Carson (A. 226, 288). The record contains copies of many media articles relating to Carson's former wife (A. 404--50). From these, as well as from the National Insider and Vilanch articles, one can assume that the wife of a public figure such as Carson more or less automatically becomes at least a part-time public figure herself.

The district court found that 'both Mr. Carson and Miss Holland fall readily within the term 'public figure." Therefore, both plaintiffs are subject to the application of the New York Times rule.

IV

In cases such as this where the New York Times rule is applicable, the Supreme Court has required that an appellate court make an independent examination of the whole record to determine whether it could constitutionally support a judgment for the plaintiff 'so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.' ¹⁰ Judge J. Skelly Wright in a concurring opinion ¹¹ applied the record-examination requirement to a summary judgment situation as follows:

In my judgment New York times Co. v. Sullivan makes actual malice a constitutional issue to be decided in the first instance by the trial judge applying the Times test of actual knowledge or reckless disregard of the truth. . . . Unless the court finds, on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the Times sense, it should grant summary judgment for the defendant.

We have examined the whole record as it now exists and find as follows:

The Vilanch (Chicago Today) article was headed 'Why Carson is Moving West' and speculated on the reasons why the Tonight Show was moving from New York City to Hollywood, California. The article gave Carson's reasons as 'the talent pool is out here now' and 'a move will give the staff 'a shot in the arm." The article gave the National Broadcasting Company's reasons that Carson's ratings 'really skyrocketed when he makes one of his frequent three-week sallies to Hollywood' and '(t)he California combination of movie stars, Vegas comics, starlets and professional weirds outdraws the Manhattan collection of stage actors, night club performers and visiting European film stars.' The reasons given by other networks were that their competition against the Tonight Show was strengthening and NBC desire to take some move to ward off that competition.

Vilanch then speculated upon another reason, prefacing his remarks with 'it's said.' He stated that 'Carson has been seeing the Bel-Air divorcee (Holland) . . .' and 'Ms. Holland's home is Los Angeles. . . .' He then concluded, apparently on the sole ground that Holland resided in California, that 'she is the woman who has launched a thousand ships westward as Johnny Carson moves his entire Tonight Show from New York to Hollywood.'

However, even after reaching that conclusion, Vilanch somewhat softened the stigma of blaming Holland for the move by also pointing out that Carson's sons by his previous marriage resided in California and that New York was 'too removed from . . . his loved ones.' Finally, he added that Carson has a home in Las Vegas which 'sees very little activity most of the year.' The total impact of the Vilanch article was that there were many reasons...