Hotchner v. Castillo-Puche

• Decision Date: 23 March 1977
• Docket Number: D,No. 674,CASTILLO-PUCH,674
• Citation: 551 F.2d 910
• Parties: 2 Media L. Rep. 1545 A. E. HOTCHNER, Plaintiff-Appellee, v. Jose Luisefendant, and Doubleday & Company, Inc., Defendant-Appellant. ocket 76-7479.
• Court: U.S. Court of Appeals — Second Circuit

Page 910

551 F.2d 910

2 Media L. Rep. 1545

A. E. HOTCHNER, Plaintiff-Appellee, v. Jose Luis CASTILLO-PUCHE, Defendant, and Doubleday & Company, Inc., Defendant-Appellant.

No. 674, Docket 76-7479.

United States Court of Appeals, Second Circuit.

Argued Feb. 14, 1977.

Decided March 23, 1977.

Mervin Rosenman, New York City (Simon J. Hauser, New York City, on the brief), for plaintiff-appellee.

Robert M. Callagy, New York City (Satterlee & Stephens, James F. Dwyer and James F. Rittinger, New York City, on the brief), for defendant-appellant.

Henry R. Kaufman, New York City, on the brief, for amicus curiae, Association of American Publishers, Inc.

Before LUMBARD and TIMBERS, Circuit Judges, and WYATT, District Judge. ^*

LUMBARD, Circuit Judge:

Doubleday & Company, Inc. appeals from a judgment of $2 compensatory damages and $125,000 punitive damages for libel and invasion of privacy entered by Judge Brieant on a jury verdict after a one-week trial in April 1976 in the Southern District. The plaintiff is A. E. Hotchner, a successful writer and lecturer who was a friend of Ernest Hemingway's and published a memoir about him, Papa Hemingway, in 1965. The suit involves unfavorable remarks about Hotchner made in Hemingway in Spain, an English translation of personal reminiscences by a Spanish writer Jose Luis Castillo-Puche, which was published by Doubleday in 1974.

The district court determined that for first amendment purposes Hotchner in his relationship with Hemingway was a public figure. ¹ Liability must therefore rest on clear and convincing proof that the defendant published with knowledge of falsity or with reckless disregard for truth. Because the evidence on this issue is inadequate to support the jury's verdict, we reverse with instructions that plaintiff's amended complaint be dismissed.

Castillo-Puche's Hemingway: Entre la Vida y la Muerte was published by Ediciones Destino in Spain in 1967. The book collects in 388 pages the author's impressions of Hemingway which were garnered in Spain and Cuba in the late 1950's. It makes roughly twenty references to Hotchner, who was a travelling companion of Hemingway's in Spain.

At trial, a professor of Spanish who had written her Ph.D. thesis on Castillo-Puche testified that he had written a number of novels, earning several literary awards and establishing himself as "an important novelist." She also described Ediciones Destino as a "very prestigious" publisher. A journalist employed by a major Spanish newspaper testified that Castillo-Puche was "one of the most important reporters in Spain."

Doubleday editor Kathryn B. Medina testified that she first became interested in the book after it was favorably mentioned in the Saturday Review in 1969. She asked two experienced literary critics to read the Spanish version, and both returned with positive reports on it. Doubleday proceeded to acquire the English-language rights to the book from Ediciones Destino and to engage an experienced translator, Helen Lane, for the translation.

In editing Lane's translation, Medina noticed that the book contained very uncomplimentary references to Hotchner. She had the passages reviewed by William Austin, a member of the Doubleday contracts department, and between them they agreed that some eleven statements should be eliminated or toned down. ² Medina relayed this proposal to Castillo-Puche by letter. He vouched for the statements but accepted the suggested modifications. ³

As published in 1974, the translation contained six passages which the jury ultimately found to be libellous. In five of these Castillo-Puche describes Hotchner as a manipulator, a "toady," a "hypocrite" who exhibited "two-faced behavior" toward Hemingway's true friends and "put up a very good front as (Hemingway's) mild-mannered, obedient servant," an "exploiter of (Hemingway's) reputation" who was "never open and above board." The sixth passage is one in which Hemingway, referring to Hotchner, tells Castillo-Puche: "I don't really trust him, though."

At trial, Hotchner testified at length regarding his close friendship with Hemingway. He produced letters from Hemingway containing expressions of appreciation and devotion. Three other members of Hemingway's circle testified that Hemingway had the greatest respect and affection for Hotchner.

Hotchner also testified that he never met Castillo-Puche. Hotchner knew no Spanish; Castillo-Puche knew no English. Hotchner and another member of Hemingway's entourage in Spain, Annie Davis, testified that at many of the occasions described in the book Castillo-Puche had not been present. They said that Castillo-Puche could have been among the hordes of people who had brief contact with Hemingway in a bar in Pamplona during the bull-fighting festival in 1959. Hemingway's widow and daughter-in-law, testifying on behalf of Doubleday, said that Castillo-Puche had been a friend of Hemingway's and had been present with Hemingway and his companions on a number of occasions. Also introduced at trial were the Spanish and English editions of Castillo-Puche's book; these contain a number of photographs of Castillo-Puche with Hemingway and, on at least one occasion, with Hotchner and Hemingway.

On the libel count, the jury returned answers to written interrogatories regarding nineteen alleged libels. It found that all the elements of liability had been proved against Doubleday in six instances. The jury also returned answers to written interrogatories on the invasion of privacy count, finding that Doubleday had knowingly portrayed Hotchner in a false light or as a participant in fictionalized events or conversations. The jury found Hotchner entitled to recover $1 on each count as compensatory damages and $125,000 as punitive damages. On July 30, 1976, Judge Brieant denied Doubleday's motion for judgment n. o. v. or remittitur. ⁴ On September 1, judgment was entered in favor of Hotchner for $125,002, with costs to be taxed. This appeal by Doubleday followed.

When a public figure sues for defamation, the first amendment bars recovery unless the defamatory falsehoods were made with knowledge of falsity or with reckless disregard for the truth. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-43, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130, 162-65, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (opinion of Warren, C. J.); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The same standard applies if the public figure sues for invasion of privacy. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 249, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974); Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). The proof must be "clear and convincing"; a mere preponderance of the evidence is not enough. Gertz v. Robert Welch, Inc.,supra, 418 U.S. at 342, 94 S.Ct. 2997; see New York Times Co. v. Sullivan,supra, 376 U.S. at 285-86, 84 S.Ct. 710. "(R)eckless disregard of the truth (means) subjective awareness of probable falsity: 'There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.' " Gertz v. Robert Welch, Inc., supra, 418 U.S. at 335 n. 6, 94 S.Ct. at 3004, quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Mere negligence is not actionable.

These strict tests may sometimes yield harsh results. Individuals who are defamed may be left without compensation. But excessive self-censorship by publishing houses would be a more dangerous evil. Protection and encouragement of writing and publishing, however controversial, is of prime importance to the enjoyment of first amendment freedoms. Any risk that full and vigorous exposition and expression of opinion on matters of public interest may be stifled must be given great weight. In areas of doubt and conflicting considerations, it is thought better to err on the side of free speech. Such adequate safeguards for free speech inevitably...