Pierce v. Capital Cities Communications, Inc.
| Decision Date | 12 April 1978 |
| Docket Number | No. 77-1470,77-1470 |
| Citation | 576 F.2d 495 |
| Parties | 3 Media L. Rep. 2259 Alfred R. PIERCE, Appellant, v. CAPITAL CITIES COMMUNICATIONS, INC., a Pennsylvania Corporation, and Richard Kellman. |
| Court | U.S. Court of Appeals — Third Circuit |
Henry Thomas Dolan, Criden, Johanson, Dolan, Morrissey & Cook, Philadelphia, Pa., for appellant.
Gregory M. Harvey, Morgan, Lewis & Bockius, Elihu A. Greenhouse, Philadelphia, Pa., for appellees.
Before ADAMS and WEIS, Circuit Judges, and COOLAHAN, District Judge. *
We are presented here with a clash between two basic norms in our legal system. One concerns the valued right of a person to be protected against inaccurate statements harming his reputation. The other deals with one of the most indispensable freedoms in a democratic state, namely, that of untrammeled expression regarding the conduct of a public official. Although the reconciliation of these principles in the context of a particular factual configuration seldom will be easy, it is essential to the healthy survival of each. That is the task which this Court is now called upon to perform.
The plaintiff's objection to the publication he challenges a television broadcast is that it gave rise to innuendoes which are defamatory of him. Specifically, Alfred R. Pierce claims that a broadcast by Capital Cities Communications, Inc., owner and operator of a Philadelphia television station, WPVI-TV, and Richard Kellman, a reporter for the station, defamed him by creating the false impression that he had misused his public position in seeking private pecuniary gain. In response, the defendants urge that the First Amendment analysis in the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and in succeeding decisions, which protect speech about public officials absent a showing of "actual malice," bars recovery in the present situation. 1
Pierce was the Mayor of Camden, New Jersey, for a ten-year period ending in 1969, and a Commissioner of the Delaware River Port Authority from June 4, 1962, until May 11, 1970. From January 1, 1969, until May 11, 1970, he was Chairman of the Authority. 2
On November 30, 1973, more than three years after Pierce was last a member of the Port Authority, WPVI-TV televised a program, entitled "Public Bridges and Private Riches," which explored the activities of the Port Authority and, in particular, the performance of Ralph Cornell, then its Chairman. 3 During the broadcast, Pierce was named approximately five times in his capacity as former Camden Mayor and Port Authority Chairman.
Since Pierce's position is that the television program as a whole was actionable as to him, even if no single remark in it was defamatory, it is necessary to set forth in some detail its major aspects. The introduction included a statement that, while preparing for the broadcast, "Action News reporter, Richard Kellman" travelled "the bridges of the Delaware River Port Authority and the high speed road to profit." 4 The structure of the Port Authority, the cost of its projects and the use of tolls to pay its debts were then described.
Following the introduction, a segment of the telecast dealt with a cost increase for steel lattice work essential to building the superstructure of the Commodore Barry Bridge. A controversy in 1969 among the members of the Port Authority, relating to the desirability of seeking new bids on the contract for steel, was elaborated, and statements by two participants in the dispute, including Ralph Cornell, were juxtaposed. Then Kellman displayed the minutes of a Port Authority meeting held on September 17, 1969, which recorded the votes on a motion for new bids on the steel contract, and he stated that "New Jersey commissioners voting 'no' included Chairman Alfred R. Pierce and the present Chairman Ralph Cornell." At the conclusion of this portion of the program, Kellman narrated:
And so . . . as the toll-payers shelled out nickels, dimes and quarters to pay for the project some Port Authority commissioners saw an opportunity for enormous profits, profits on land deals made possible by the very bridge motorists would be paying for well into the year 2000.
After a pause for a commercial announcement, the program showed Kellman noting that there was a close relationship between the construction of the Commodore Barry Bridge, which runs from Chester, Pennsylvania to Bridgeport, New Jersey, and the increase in land values in the Bridgeport area. The mayor of Bridgeport was quoted as saying that the values of land in the town had risen directly as a result of the construction of the bridge. As to Pierce's own interest in land in the vicinity of the Commodore Barry Bridge, Kellman remarked:
Among the properties with identifiable owners . . . is this 90-acre plot of Route 322 . . . where the expressway linking Routes 130 and 295 will be built. The deed is recorded at the Gloucester County Courthouse in Woodbury. It shows the property is owned by Alfred R. Pierce . . . former Mayor of Camden and Port Authority Chairman at the time the Barry bridge was approved. On the day Pierce bought his 90 acres . . . he also bought 22 acres more . . . just across the road . . . and on the same day . . . in April of last year . . . he sold the 22 acres to a corporation that also has the deed to 67 acres farther up the road where Route 322 crossed Route 295.
The broadcast proceeded to focus on the development of the Lindenwold Hi-Speed Line, a mass transit facility that was built and is operated under the auspices of the Port Authority and runs from Philadelphia to Lindenwold, New Jersey. Kellman indicated that "(t)here's talk of extending the Hi-Speed Line past Lindenwold to the Jersey Shore" in the event of the areas' continued expansion, residentially and commercially. Certain land near the Ferry Avenue station of the Lindenwold Hi-Speed Line, described as "prime commercial property," was said to be owned by "a combine called ABJ, Inc.," whose shareholders "include former Camden Mayor and Port Authority Chairman Alfred R. Pierce."
Kellman mentioned a third parcel of real estate in which Pierce was portrayed as having an interest that was said to be located in Woodbury, New Jersey, near a proposed extension of the Hi-Speed Line. As Kellman said:
A Port Authority study recommended the Gloucester route to Woodbury where there are five acres of land owned by a corporation that includes as shareholders former Camden Mayor and Port Authority Chairman Alfred Pierce and former Port Authority Commissioner John Crisconi of Philadelphia.
In mid-October, Port Authority engineers confirmed their recommendation that the Woodbury station would be built here, adjacent to the propoerty (sic) owned in part by Pierce, Crisconi and Cornell.
In the aftermath of those remarks, Kellman questioned Cornell about the "guidelines" he followed in his work in order to avoid a conflict of interest, and Cornell replied that he adhered to "the ten commandments." A prominent Philadelphia banker, John Bunting, who has since been appointed to the Port Authority, was quoted as saying that, in his view, "certainly buying land raises doubts."
Kellman then explained that the director of bridges for the Port Authority, Andrew Ferenz, had been fined and given a suspended jail sentence for "using Port Authority building materials on his own home." Ferenz was described as the brother-in-law of "former Camden Mayor and Port Authority Chairman, Alfred R. Pierce."
On May 16, 1974, five-and-one-half months after the airing of the broadcast, Pierce filed a complaint, predicated on diversity jurisdiction, charging that the television program falsely "accused plaintiff of acting in his own selfish interest and in abuse of his public trust." Pierce also alleged that harmful "innuendoes" arising from it subjected him to "public ridicule, contempt, and humiliation," injuring his "good name and reputation" and thereby defaming him. He sought compensatory damages in the amount of two million dollars, as well as punitive damages for the same sum. 5 After the defendants filed an answer, there was extensive pre-trial discovery. On the basis of the information acquired during discovery, the defendants moved for summary judgment.
The district court, in an opinion and order dated February 7, 1977, 427 F.Supp. 180, held that the application of the principles enunciated in New York Times required a grant of summary judgment on behalf of the defendants, for Pierce had not set forth sufficient facts showing, as a public official is required to do, that the publication in question, even if defamatory, was made with "knowledge that it was false or with reckless disregard of whether it was false or not." 6
Pierce urges that the district court erred in not fully considering the harmful innuendoes, or the inferences drawn from context, that necessarily flowed from the language and composition of the television broadcast viewed as a whole. 7 If one takes account of such innuendoes, Pierce submits, it can only be concluded that the requirement of a showing of "actual malice" established by New York Times does not bar recovery here.
It is maintained by Pierce, for instance, that the discussion in the broadcast of the 1969 vote by members of the Port Authority over rebidding a contract for steel to be used in constructing the Commodore Barry Bridge raised the incorrect implication that Pierce had cast his vote in order to expedite the construction, and thereby accelerate his realization of profits from the resale of land he had acquired near the bridge. Also, Pierce charges that the broadcast impliedly suggested again, falsely that he had used knowledge gained as a public official in making his private acquisitions of real estate. Further, Pierce claims that the opinions expressed in the program, such as by John Bunting, to the...
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