556 F.2d 113 (2nd Cir. 1977), 1026, Edwards v. National Audubon Soc., Inc.

Docket Nº1026, 1027, Dockets 77-7018, 77-7034.
Citation556 F.2d 113
Party NameJ. Gordon EDWARDS, Ph.D., Thomas H. Jukes, Ph.D., Robert H. White-Stevens, Ph.D., Plaintiffs-Appellees, v. NATIONAL AUDUBON SOCIETY, INC., Robert S. Arbib, Jr., Elvin J. Stahr, Jr., Defendants, and The New York Times Company and Roland C. Clement, Defendants-Appellants.
Case DateMay 25, 1977
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 113

556 F.2d 113 (2nd Cir. 1977)

J. Gordon EDWARDS, Ph.D., Thomas H. Jukes, Ph.D., Robert H.

White-Stevens, Ph.D., Plaintiffs-Appellees,

v.

NATIONAL AUDUBON SOCIETY, INC., Robert S. Arbib, Jr., Elvin

J. Stahr, Jr., Defendants,

and

The New York Times Company and Roland C. Clement,

Defendants-Appellants.

Nos. 1026, 1027, Dockets 77-7018, 77-7034.

United States Court of Appeals, Second Circuit

May 25, 1977

Argued May 10, 1977.

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[Copyrighted Material Omitted]

Page 115

Floyd Abrams, New York City (Eugene R. Scheiman, Ruth D. MacNaughton, and Cahill Gordon & Reindel, New York City, of counsel), for defendant-appellant New York Times Co.

Morris Zweibel, Mineola, N. Y. (Gifford, Woody, Carter & Hays, New York City, and Crowe, McCoy, Agoglia, Fogarty & Zweibel, P.C., Mineola, N. Y., of counsel), for defendant-appellant Roland C. Clement.

Thomas A. Rothwell, Washington, D. C. (Arthur H. Berndtson, and Rothwell, Capello & Berndtson, Washington, D. C., of counsel), for plaintiffs-appellees.

Before KAUFMAN, Chief Judge, CLARK, Associate Justice [*] and JAMESON, District Judge. [**]

IRVING R. KAUFMAN, Chief Judge:

In a society which takes seriously the principle that government rests upon the consent of the governed, freedom of the press must be the most cherished tenet. It is elementary that a democracy cannot long survive unless the people are provided the information needed to form judgments on issues that affect their ability to intelligently govern themselves. As we said in James v. Board of Education, 461 F.2d 566, 572, "To preserve the 'marketplace of ideas' so essential to our system of democracy, we must be willing to assume the risk of argument and lawful disagreement." In the thirteen years since New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the federal courts have steadfastly sought to afford broad protection to expression by the media, without unduly sacrificing the individual's right to be free of unjust damage to his reputation. See, e. g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). This important case requires us to return again to this task.

We are invited today to affirm a libel judgment against the New York Times for accurately reporting dramatic statements of the National Audubon Society attacking the good faith of prominent scientists supporting continued use of the insecticide DDT. There can be little doubt that the Times reasonably considered these accusations of a leading environmentalist organization to be newsworthy. We are further requested to affirm judgments against Roland Clement, a Vice-President of the Society, despite the absence of any evidence in the record that he endorsed or made the single statement that could be found to have been libelous under the Constitution. We are convinced that the First Amendment requires us to decline these invitations. Accordingly we will reverse and order the complaint dismissed.

I.

A brief summary of the facts is indispensable to understanding the difficult legal issues presented by this appeal.

The DDT debate. The publication fifteen years ago of Rachel Carson's Silent Spring set off a furious controversy that, even today, continues to rage around the insecticide DDT. Naturalists and environmentalist groups like the National Audubon Society have vigorously opposed DDT because, in their view, use of the chemical endangers bird life. Proponents of the pesticide deny this charge and forcefully urge that, without

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DDT, millions of human beings will die of insect-carried diseases and starvation caused by the destruction of crops by insect pests.

As might be expected when such fundamental questions of value enter the debate, at times the DDT controversy has exceeded the limits of temperance and good manners. Naturalists have insinuated that many proponents of DDT are unduly influenced by the selfish interests of the pesticide industry. On the other hand, such an outstanding advocate of DDT as appellee Dr. J. Gordon Edwards, has characterized a ban on export of the insecticide, supported by the Audubon Society, as "deliberately genocidal." 1 Accusations of scientific bad faith have unfortunately become almost commonplace on both sides.

Arbib's "Foreword" to American Birds. The scientists who advocate continued use of DDT respond to charges that the chemical destroys bird life by citing the annual Audubon Society Christmas Bird Count, which shows a steady increase in bird sightings despite the growing employment of pesticides in the last thirty years. The Audubon Society believes this is an invalid use of its statistics because there are many more bird counters now and because bird watchers have grown more skilful in recent years with better access to observation areas. This dispute over the interpretation of the Society's statistics lies at the heart of the controversy over DDT's threat to bird life.

By 1972 the DDT controversy was raging at peak intensity, 2 and the Audubon Society was acutely alarmed at what it considered the persistent misuse of its Bird Count data. Accordingly, Robert S. Arbib, Jr., a highly respected amateur ornithologist and editor of the Society's publication American Birds, determined to preface his report of the 1971 Christmas Count with a warning against distortion of the results. His foreword to the April, 1972, issue of American Birds, contained the following comment on the Count's significance:

We are well aware that segments of the pesticide industry and certain paid "scientist-spokesmen" are citing Christmas Bird Count totals (and other data in AMERICAN BIRDS) as proving that the bird life of North America is thriving, and that many species are actually increasing despite the widespread and condemned use of DDT and other non-degradable hydrocarbon pesticides.

This, quite obviously, is false and misleading, a distortion of the facts for the most self-serving of reasons. The truth is that many species high on the food chain, such as most bird-eating raptors and fisheaters, are suffering serious declines in numbers as a direct result of pesticide contamination; there is now abundant evidence to prove this. In addition, with the constant diminution of natural habitat, especially salt- and freshwater marshes, it is self-evident that species frequenting these habitats are less common than formerly.

The apparent increases in numbers of species and individuals on the Christmas Bird Counts have, in most cases, nothing to do with real population dynamics. They are the result of ever-increasing numbers of birders in the field, better access to the Count areas, better knowledge of where to find the birds within each area, and increasing sophistication in identification.

With increased local coverage by the press of Christmas Bird Count activities, it is important that Count spokesmen reiterate

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the simple and truthful fact that what we are seeing is result of not more birds, but more birders. Any time you hear a "scientist" say the opposite, you are in the presence of someone who is being paid to lie, or is parroting something he knows little about.

Despite the potentially explosive character of the allegation that scientists supporting DDT were paid liars, Arbib does not appear to have had any factual basis for the charge. Indeed, he testified that his comment was never intended to portray anyone in particular as a venal prevaricator; rather, it merely expressed his belief that many supporters of DDT use were spokesmen for the pesticide industry.

The New York Times Article. Arbib's general accusations came to the attention of New York Times nature reporter John Devlin in late July, 1972. Devlin immediately realized that the Audubon Society's charges were a newsworthy development in the already acrimonious DDT debate, and he accordingly telephoned Arbib to obtain the names of those the Society considered "paid liars". Arbib was initially reluctant to identify any individuals as the people referred to in his article. But, as a result of Devlin's persistent urging that many eminent persons associated with the pesticide industry might be hurt unnecessarily by the Society's indiscriminate attack, Arbib eventually promised to furnish the names of specific individuals whom he felt were justly subject to the Society's charges.

Arbib, of course, did not know of anyone in particular whom he could with assurance call a "paid liar". He turned, therefore, to Roland Clement, the Audubon Society's Staff Biologist and Vice-President, who more than any other official of the naturalist organization had embroiled himself in the DDT controversy and had knowledge of its participants. Arbib testified that Clement strongly emphasized he could not call anyone specifically a paid liar. He could, however, identify those who had most persistently misused Bird Count data, despite the Society's efforts to point out their error. Clement told Arbib he had just completed an article for an environmentalist journal which listed the scientists whose distortion of the Audubon statistics seemed most egregious, 3 and, in Arbib's words,

he believed it would be all right to give the names to Mr. Devlin as long as we qualified this by saying 'We don't have any knowledge of anyone being paid liars, and all we want to say is that they have been consistent misinterpretors of the information in American Birds.'

When Devlin telephoned again for the names, Arbib was prepared with Clement's article. But, Devlin and Arbib sharply disagreed at trial regarding the ensuing conversation....

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172 practice notes
  • 631 F.Supp. 1566 (E.D.Mich. 1986), 81-73981, Dougherty v. Capitol Cities Communications, Inc.
    • United States
    • Federal Cases United States District Courts 6th Circuit
    • February 6, 1986
    ...plaintiff's denial of a fact is insufficient to infer malice. As stated by the Second Circuit in Edwards v. National Audubon Society, 556 F.2d 113, 121 (2d Cir), cert. denied sub nom. Edwards v. New York Times, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977), "such denials are so co......
  • 144 Cal.App.3d 868, 30062, Grillo v. Smith
    • United States
    • California California Court of Appeals
    • May 24, 1983
    ...freedom to report such charges without assuming responsibility for them." (Edwards v. National Audubon Society, Inc. (2d Cir.1977) 556 F.2d 113, 120; cited with approval in Weingarten v. Block (1980) 102 Cal.App.3d 129, 148, 162 Cal.Rptr. 701.) The argument that Grillo was libeled by t......
  • 206 Cal.App.3d 966, C000029, Stockton Newspapers, Inc. v. Superior Court
    • United States
    • California California Court of Appeals
    • December 20, 1988
    ...be a somewhat analogous doctrine within the federal constitutional privilege. (See Edwards v. National Audubon Society, Inc. (2d Cir.1977) 556 F.2d 113, 120; but cf. Gertz v. Welch (1974) 418 U.S. 323, 388-392, 94 S.Ct. 2997, 3030-3033, 41 L.Ed.2d 789, 833-835 (dis. opn. of White, J.); also......
  • 618 P.2d 512 (Wash.App. Div. 1 1980), 7564-1, Mark v. King Broadcasting Co.
    • United States
    • Washington Court of Appeals of Washington
    • September 29, 1980
    ...the report is accurate and complete or a fair abridgement of the occurrence reported. Compare Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977), with Dickey v. CBS, Inc., 583 F.2d 1221 (3d Cir. 1978). Cf. Molo......
  • Request a trial to view additional results
167 cases
  • 631 F.Supp. 1566 (E.D.Mich. 1986), 81-73981, Dougherty v. Capitol Cities Communications, Inc.
    • United States
    • Federal Cases United States District Courts 6th Circuit
    • February 6, 1986
    ...plaintiff's denial of a fact is insufficient to infer malice. As stated by the Second Circuit in Edwards v. National Audubon Society, 556 F.2d 113, 121 (2d Cir), cert. denied sub nom. Edwards v. New York Times, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977), "such denials are so co......
  • 144 Cal.App.3d 868, 30062, Grillo v. Smith
    • United States
    • California California Court of Appeals
    • May 24, 1983
    ...freedom to report such charges without assuming responsibility for them." (Edwards v. National Audubon Society, Inc. (2d Cir.1977) 556 F.2d 113, 120; cited with approval in Weingarten v. Block (1980) 102 Cal.App.3d 129, 148, 162 Cal.Rptr. 701.) The argument that Grillo was libeled by t......
  • 206 Cal.App.3d 966, C000029, Stockton Newspapers, Inc. v. Superior Court
    • United States
    • California California Court of Appeals
    • December 20, 1988
    ...be a somewhat analogous doctrine within the federal constitutional privilege. (See Edwards v. National Audubon Society, Inc. (2d Cir.1977) 556 F.2d 113, 120; but cf. Gertz v. Welch (1974) 418 U.S. 323, 388-392, 94 S.Ct. 2997, 3030-3033, 41 L.Ed.2d 789, 833-835 (dis. opn. of White, J.); also......
  • 618 P.2d 512 (Wash.App. Div. 1 1980), 7564-1, Mark v. King Broadcasting Co.
    • United States
    • Washington Court of Appeals of Washington
    • September 29, 1980
    ...the report is accurate and complete or a fair abridgement of the occurrence reported. Compare Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977), with Dickey v. CBS, Inc., 583 F.2d 1221 (3d Cir. 1978). Cf. Molo......
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2 firm's commentaries
  • TheFlyonTheWall: A Judicial Paradox? By Robert P. LoBue
    • United States
    • JD Supra United States
    • January 30, 2012
    ...at 902–905, and especially fn. 38. There is a loose analogy to the neutral reportage principle of Edwards v. National Audubon Society, 556 F. 2d 113 (2d Cir. 1977) (the republication of a libelous statement was not actionable where the fact that the speaker had made the statement was newswo......
  • #MeToo and the Media
    • United States
    • JD Supra United States
    • July 9, 2018
    ...id. at 137-47; Salzano v. N. Jersey Media Group Inc., 993 A.2d 778, 785-98 (N.J. 2010). 3 See, e.g., Edwards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113, 120 (2d. Cir. 4 Roseblatt v. Baer, 383 U.S. 75, 85 (1965). 5 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). 6 See id. at 334-3......
3 books & journal articles
  • A Newsworthiness Privilege for Republished Defamation of Public Figures
    • United States
    • Iowa Law Review Nbr. 94-3, March 2009
    • March 1, 2009
    ...of Sullivan to determine which way Supreme Court jurisprudence militates." Id. at 2033. [50] Edwards v. Nat'l Audubon Soc'y, Inc., 556 F.2d 113, 115-16 (2d Cir. 1977). [51] Id. at 116-17. [52] Id. [53] Id. at 117. [54] Id. at 117-18. Arbib insisted that when Devlin called the second ti......
  • Is libel law worth reforming?
    • United States
    • University of Pennsylvania Law Review Vol. 140 Nbr. 2, December 1991
    • December 1, 1991
    ...fee basis. See LIBEL LAW AND THE PRESS, supra note 3, at 148. (68) The privilege was first recognized in Edwards v. National Audubon Soc., 556 F.2d 113, 120 (2d Cir.), cert. denied, 434 U.S. 1002 (1977). (69) See April v. Reflector-Herald, Inc., 546 N.E.2d 466, 469 (Ohio Ct. App. 1988) (hol......
  • Libel in cyberspace: a framework for addressing liability and jurisdictional issues in this new frontier.
    • United States
    • Albany Law Review Vol. 59 Nbr. 4, June 1996
    • June 22, 1996
    ...to form judgments on issues that affect their ability to intelligently govern themselves." Edwards v. National Audubon Soc'y, Inc., 556 F.2d 113, 115 (2d Cir.), cert. denied, 434 U.S. 1002 (23) See, e.g., Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2456 (1994) (allowing mor......