Wolston v. Reader's Digest Ass'n, Inc.

• Decision Date: 23 May 1978
• Docket Number: No. 77-1329,77-1329
• Parties: , 3 Media L. Rep. 2334 Ilya WOLSTON, Appellant, v. The READER'S DIGEST ASSOCIATION, INC., d/b/a Reader's Digest Press, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 427

578 F.2d 427

188 U.S.App.D.C. 185, 3 Media L. Rep. 2334

Ilya WOLSTON, Appellant, v. The READER'S DIGEST ASSOCIATION, INC., d/b/a Reader's Digest

Press, et al.

No. 77-1329.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 15, 1978.

Decided May 23, 1978.

Sidney Dickstein, Washington, D. C., with whom Stephen G. Kozey, Washington, D. C., was on the brief for appellant.

John J. Buckley, Jr., Washington, D. C., with whom John W. Vardaman, Jr., Washington, D. C., was on the brief for appellees.

Before ROBINSON, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

In this action for libel Ilya Wolston sues the author, John Barron, and the publishers of a book entitled "KGB: The Secret Work of Soviet Secret Agents". The defendant The Reader's Digest Association, Inc. (Reader's Digest) is the initial publisher and the defendants Bantam Books, Inc., Book-of-the-Month Club and MacMillan Book Clubs, Inc., are subsequent publishers under contract arrangements with Reader's Digest. The District Court granted summary judgment for the defendants. Wolston v. Reader's Digest Ass'n, 429 F.Supp. 167 (D.D.C.1977).

Wolston is the nephew of one Jack Soble who in April 1957, in United States District Court for the Southern District of New York, pled guilty to an indictment charging espionage. On the same day his wife Myra Soble also pled guilty to this offense. In October 1957 they were sentenced to the penitentiary.

The grand jury's investigation of espionage continued after the indictment of the Sobles. Wolston was subpoenaed to appear before the grand jury in New York and he did appear on several occasions. On July 1, 1958 he failed to appear. As a result, in August 1958, he was charged with criminal contempt and on his plea of guilty was placed on probation for three years conditioned on his being available to process of the court within that period. The contempt proceeding generated some fifteen newspaper stories in the District of Columbia, where Wolston lived, and in New York. Thereafter, in 1959, Wolston's name appeared in a book entitled "My Ten Years As a Counterspy", written by Boris Morros, a former confederate of Soble. According to Morros, Soble identified Wolston to him as a Soviet agent who had furnished Soble information. Wolston was also identified as a Soviet agent in an FBI Report "Expose of Soviet Espionage", published in 1960 by the Senate Internal Security Subcommittee of the Committee on the Judiciary, United States Senate.

KGB was first published in January 1974. The alleged libel appears in the following passage in KGB referring to disclosures by "royal commissions in Canada and Australia, and official investigations in Great Britain and the United States" Among Soviet agents identified in the United States were Elizabeth T. Bentley, Edward Joseph Fitzgerald, William Ludwig Ullmann, William Walter Remington, Franklin Victor Reno, Judith Coplon, Harry Gold, David Greenglass, Julius and Ethel Rosenberg, Morton Sobell, William Perl, Alfred Dean Slack, Jack Soble, Ilya Wolston, Alfred and Martha Stern.*

The District Court granted summary judgment for the defendants upon the ground that Wolston was a public figure for the limited purpose of comment on his connection with, or involvement in, espionage, and that the evidence raised no genuine issue with respect to the existence of actual malice on the part of the defendants. We affirm.

PUBLIC OR PRIVATE FIGURE A QUESTION OF LAW

The District Court held that whether Wolston was a public figure was a question of law, to be decided by the court. Wolston contends that in this the court erred because "this complex factual question . . . . whether plaintiff is a public figure is properly a jury matter." We think the District Court was right. In Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) the Court remarked that "as is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official' ". We think the same rule should be applied when the question is whether a plaintiff is a "public figure". The Court observed "(s)uch a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions." 383 U.S. 88, n.15, 86 S.Ct. 677. We add that a jury of laymen is hardly qualified to apply the nice and sometimes intricate distinctions between public and private figures which have been developed in the cases following New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Application of those rules and distinctions is analogous to a court's ruling on the question of probable cause for a search and seizure, a matter which of course is for the court and not the jury. We note furthermore that counsel is unable to cite any case in which a jury has been permitted to decide whether a plaintiff, as a matter of "constitutional fact", is a public figure. On the contrary, the question has always been held to be one for the court. See Hotchner v. Castillo-Puche, 404 F.Supp. 1041, 1043-47 (S.D.N.Y.1975) (order denying summary judgment). ²

Wolston argues that there was an issue of fact concerning his intention in failing to appear before the grand jury and in subjecting himself to a contempt proceeding. The issue he says was whether in so doing he intended to mount a public rostrum and to participate in the debate concerning espionage investigations. We conclude however that the undisputed facts demonstrate that he became a public figure, whatever his subjective intention might have been. We therefore turn to a consideration of the undisputed facts.

WOLSTON A PUBLIC FIGURE

The plaintiff Ilya Wolston was born in Russia in 1918 and later lived in Lithuania, Germany, France, and England. In 1939 he came to the United States and in 1943 became a naturalized citizen. He was drafted into the United States Army in On January 25, 1957 Wolston's aunt and uncle, Myra and Jack Soble, were arrested on espionage charges by agents of the Federal Bureau of Investigation. They were indicted on February 4, 1957 on five counts charging espionage, conspiracy, and violation of the Registration Acts. In April 1957 Jack Soble pled guilty to espionage and was sentenced to imprisonment for seven years. On the same day the Sobles were arrested, Wolston was interviewed at his home by the F.B.I. Shortly thereafter he was subpoenaed to appear before a federal special grand jury convened in the Southern District of New York, to investigate the activities of Soviet intelligence agents in the United States. Wolston was interviewed by the F.B.I. on at least three more occasions in connection with the grand jury's investigation and he made trips to New York in response to subpoenas.

1942, trained as a Russian interpreter, and served primarily in Alaska as a liaison to Soviet military personnel. After his discharge in 1946, he worked as an interpreter for the United States Military Government and the Department of State in Allied-occupied Berlin. On his return to the United States in 1951, Wolston first worked as a clerk, then enrolled in an undergraduate program, and in 1955 moved to Washington, D. C. to work for several months for the Army Map Service and finally as a free-lance translator until 1957.

On July 1, 1958 Wolston failed to respond to a grand jury subpoena directing him to appear on that date. On July 14, 1958 a federal district judge ordered that Wolston show cause why he should not be held in criminal contempt of court. These events immediately attracted a significant amount of public attention and coverage by newspapers. On July 15 and 16, at least seven news stories were published in New York and Washington, D. C., newspapers, focusing on Wolston's failure to appear and the court's show cause order. The stories were headlined "Spy Inquiry Hunts Nephew of Soble," "Hunt Soble Kin for Spy Data," "Soble Nephew Facing Jail in Spy Quiz Snub," "Soble Nephew Faces Rap for Probe Dodge," "Court Calls Spy's Nephew," and "Kin of Soble Faces Quiz on Contempt." (App. 270-271, 273-275, 280-281) The stories reported statements by Assistant United States Attorney Herbert C. Kantor that Wolston had been in contact with the Sobles for a long time before their arrest in January 1957. Three of the stories reported a statement by Mr. Kantor that Wolston was believed to have material information about the espionage matters under investigation, described in one story quoting Kantor as a "general criminal conspiracy against the U. S." (App. 274) The stories noted that Wolston had served as an interpreter at the U. N. conference in San Francisco, for the military government in Germany and in the Office of the United States High Commissioner of Germany.

On July 29, 1958 at least two newspapers reported that the judge presiding at the contempt hearing commented that "there is no question in my mind that there was a studied attempt (by Wolston) to avoid (an) appearance before this grand jury." (App. 279, 284) Three newspaper stories reported Mr. Kantor's statement that Wolston had previously failed to appear in answer to five different subpoenas, each time submitting a doctor's certificate the day before his scheduled appearance. In the subsequent contempt proceeding, Mr. Kantor submitted an affidavit stating that Wolston had failed to appear on several prior occasions in response to subpoenas.

On August 7, 1958 Wolston pled guilty to the charge of criminal contempt of court, and on August 8, his guilty plea was reported in two newspapers. On August 13, Wolston received a one-year suspended sentence on his guilty plea, and he was placed on probation for three years on condition that he be available to appear...