Dickey v. CBS Inc.
| Decision Date | 12 September 1978 |
| Docket Number | No. 77-2615,77-2615 |
| Citation | 583 F.2d 1221 |
| Parties | 4 Media L. Rep. 1353 Samuel R. DICKEY, Appellant, v. CBS INC., Appellee. |
| Court | U.S. Court of Appeals — Third Circuit |
Alvin S. Ackerman, Ackerman & Mylotte, Upper Darby, Pa., for appellant.
George P. Williams, III, Peter S. Greenberg, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.
Before ALDISERT, VAN DUSEN and HUNTER, Circuit Judges.
This appeal arises from a defamation suit brought by Samuel R. Dickey against CBS Inc. (CBS) for false statements 1 about Dickey made by then Congressman Lawrence G. Williams, and broadcast by CBS's Philadelphia affiliate, WCAU-TV (Channel 10). Sitting without a jury, the trial court held in favor of CBS. 441 F.Supp. 1133 (1977). It ruled that Dickey was a public figure and had failed to prove by clear and
convincing evidence that CBS had acted with actual malice, as required and defined by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). We affirm.
On May 1, 1974, the candidates for the Republican nomination for United States Representative for the Seventh Congressional District of Pennsylvania videotaped a program for Channel 10 called "Update" which was to be broadcast on May 5. Two of the candidates who appeared on the program were Williams and Stephen J. McEwen, the District Attorney of Delaware County. Although Williams was the incumbent, the Delaware County Republican Board of Supervisors, 2 popularly known as the War Board, had given its endorsement to McEwen.
The candidates were interviewed on "Update" by two Channel 10 reporters, John Facenda and Dan Cryor. After questioning the other candidates on their views about inflation, Cryor asked Williams, "Mr. Congressman . . . inflation?" Williams responded in pertinent part:
(emphasis added).
Thus, in response to a question about inflation, Williams charged that the Sprague report 3 accused Dickey, who was a member of the War Board which had endorsed McEwen, of taking payoffs.
Immediately following Williams' statement, the following dialogue between Facenda and McEwen took place:
Mr. Facenda: I wanted to ask that question of Mr. McEwen. Sprague hasn't yet made public that particular report, and why hasn't he, and do you intend to, well, is that normal procedure, let me put it that way.
Mr. McEwen: Well, John, there is no report. Mr. Williams was invited, in fact he set the time and place in my office last Wednesday, a week ago today, and Mr. Sprague appeared, I appeared, Mr. Williams did not. Mr. Sprague in a conference with the press made perfectly clear at that time that there is no report, that he would expect the report to be ready On May 2, 1974, one day after the taping and three days before "Update" was aired, Dickey's attorney, Alvin Ackerman, telephoned Melvin Levine, Director of Technical Operations and Administration for Channel 10, and John L. Essig, Channel 10 News Operations Manager. He told them that the charges against Dickey were false and defamatory, and asked that the May 5 scheduled broadcast of "Update" be postponed pending further investigation of the truth or falsity of Williams' statements.
mid-summer. As far as the reasons why, I guess they would rather, they, they would be more appropriately addressed to Mr. Sprague himself. He indicated at that time, however, he had other matters that required his attention, such as the conviction of the ten or so defendants of murder, including Mr. Boyle more recently in the Delaware County courts, so that Mr. Sprague was brought in 1971 as an independent investigator, as an independent prosecutor, and that concept began in Delaware County so the people of the County could have confidence in the District Attorney's office. Mr. Williams' charges about reports that I have and Mr. Sprague has is just incorrect. There is no such report. And that's that. Now you can take the word of Mr. Sprague or Mr. Williams, and I'll ride any time with Mr. Sprague, that's for sure.
On May 3, Ackerman wrote to Levine and Essig, reiterating his position. The letter to Levine stated:
Dear Mr. Levine:
In accordance with our telephone conversation yesterday, I wish to confirm that I represent Mr. Samuel R. Dickey. As I told you during that telephone conversation, it is my understanding that WCAU-TV intends to telecast a prerecorded interview with Congressman Lawrence Williams on its 'Update' program scheduled Sunday, May 5, 1974. It is further my understanding that false and defamatory accusations against my client were made during the course of this interview and will be further published by the aforementioned telecast. I asked that you withhold the showing of this program pending an investigation of the accusations which, I am certain, you will then find are completely false.
When I called your office late yesterday afternoon to determine what decision, if any, you had made with respect to my client's request, I was referred to Mr. Jack Essig who advised me that he had been made aware of the objection I raised and that a copy of the tape was being forwarded to your legal department for an opinion but that it was still the intention of WCAU-TV to telecast the program as scheduled.
I submit that the airing of this program would be completely irresponsible and result in great damage to Mr. Dickey's reputation. I once again insist that you not further aid those who would falsely vilify Mr. Dickey by an additional publication of these libelous statements. Should you persist in your attempts to do so you may be assured that Mr. Dickey will pursue all legal remedies that are available to him to their fullest extent.
Very truly yours,
On May 2, Cryor informed Robert Morse, the Channel 10 news director, that Williams had made serious charges against Dickey at the taping. Morse assigned Bill Baldini, a Channel 10 reporter familiar with Delaware County politics, to talk with Williams and Dickey and to attempt to get from Williams information substantiating Williams' charges. Baldini attempted to reach Dickey, Ackerman, and Harry McNichol, the Chairman of the War Board, but none of them returned his calls.
Baldini did reach Williams on May 2 and arranged for an interview to take place at Williams' home later that day. Baldini asked Williams during the interview to give him a copy or to let him see a copy of the Sprague report but Williams rejected Baldini's requests. Williams also refused to give Baldini the names of the informants who allegedly provided him with the information that formed the basis of his charges. The trial court found, however, that Williams Baldini reported back to Morse on May 4, the day before "Update" was to be shown. He described his interview with Williams in detail and stated that because Williams was involved in a closely contested election campaign, he viewed Williams' charges with a jaundiced eye. Nevertheless, the trial court found that Baldini concluded, and so informed Morse, that "there was a good probability that Williams was telling the truth."
told Baldini that "a lot" of his information "was based on his personal experience" as a former, long-time member of the War Board. Williams also stated that he realized the seriousness of the charges he had made and that he would stake his reputation on their accuracy.
"Update" was broadcast as scheduled on May 5. That evening, on the 7:00 p.m. news, Williams' remarks were shown on videotape, followed by a live appearance by Ackerman in which he denied the charges made against Dickey and denied the existence of the Sprague report. On the 11:15 news that same evening, Williams' statements and Ackerman's response were rebroadcast. Subsequently, Dickey brought this defamation suit against CBS in the Eastern District of Pennsylvania. 4
The district court found that in deciding to air "Update", Morse of CBS took into account that:
(a) Congressman Williams had come prepared to make the statements he made. His charges were not off-the-cuff responses to any questions asked, but were worked into a response to a question concerning inflation.
(b) Williams was a four-term Congressman and that gave him a great deal of credibility.
(c) While Williams spoke of quoting the Sprague report, he actually waved papers around, which certainly implied that he possessed the report or portions of it and was quoting from it.
(d)...
To continue reading
Request your trial
-
DiSalle v. P.G. Pub. Co.
...and this case, however, we are not persuaded that the language of Pape redefines actual malice under its own facts. In Dickey v. CBS, Inc., 583 F.2d 1221 (3rd Cir.1973), the Third Circuit Court of Appeals was confronted with an argument similar to the one presented here. There, the appellan......
-
Barry v. Time, Inc.
...with the Supreme Court's rejection in Gertz of the Rosenbloom "newsworthiness" test. Id. at 863; see also Dickey v. CBS, Inc., 583 F.2d 1221, 1226 n. 5 (3d Cir.1978); Newell v. Field Enterprises, Inc., 91 Ill.App.3d 735, 47 Ill.Dec. 429, 446-47, 415 N.E.2d 434, 451-52 (1980). Other courts h......
-
Rusack v. Harsha
...or by "convincing clarity." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Dickey v. CBS, Inc., 583 F.2d 1221 (3rd Cir. 1978). A bare allegation of New York Times malice is not enough to withstand a summary judgment motion. See Hutchinson v. Proxmi......
-
Schiavone Const. Co. v. Time, Inc.
...without malice, it in no way constitutionalized the fair report thereby insulating all reports of newsworthy events. See Dickey v. CBS, 583 F.2d 1221, 1226 (3d Cir.1978) (rejecting the argument that Pape created a constitutional fair report privilege protecting accurate reports published wi......