Dunn v. Gannett New York Newspapers, Inc.

• Citation: 833 F.2d 446
• Decision Date: 20 November 1987
• Docket Number: No. 87-5165,87-5165
• Parties: , 14 Media L. Rep. 1871 Thomas G. DUNN, Appellant, v. GANNETT NEW YORK NEWSPAPERS, INC.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 446

833 F.2d 446

56 USLW 2300, 14 Media L. Rep. 1871

Thomas G. DUNN, Appellant, v. GANNETT NEW YORK NEWSPAPERS, INC.

No. 87-5165.

United States Court of Appeals,

Third Circuit.

Argued Sept. 28, 1987.

Decided Nov. 10, 1987.

As Amended Nov. 20, 1987.

William J. Prout, Jr. (argued), Janyce W. Stahl, Tompkins, McGuire & Wachenfeld, Newark, N.J., for appellant.

Robert C. Bernius (argued), Richard D. Rochford, Jr., Nixon, Hargrave, Devans & Doyle, Washington, D.C., Richard A. Ragsdale, Strauss & Hall, Princeton, N.J., for appellee.

Before GIBBONS, Chief Judge, MANSMANN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

We are faced with a novel question of defamation law in this diversity proceeding. We must decide whether the attribution by a newspaper of the Spanish word "cerdos" to an utterance of the Elizabeth, New Jersey, mayor describing city litterbugs constitutes actionable libel under state law and the teachings of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny. An acceptable English translation of "cerdos" is "pigs." We are required to determine whether the actual Spanish word or its English translation should be considered in deciding whether actual malice was implicated in the publication.

El Diario-La Prensa, a Spanish language daily newspaper, published an account of Mayor Thomas G. Dunn's anti-litterbug remarks made during a campaign speech. The headline introducing the story stated that the mayor had called Elizabeth's Hispanic population "cerdos"; the paper later published a very critical open letter to the mayor. The mayor then filed a complaint against the newspaper charging it with libel. The paper interposed a New York Times defense in a summary judgment proceeding contending that the mayor had failed to present sufficient evidence of actual malice. The district court agreed. The mayor has appealed. We first turn to the facts which are largely undisputed.

I.

On October 19, 1984, the Mayor of Elizabeth, New Jersey, Thomas G. Dunn, made certain comments during a campaign debate in response to a question regarding the City's litter problem:

But litter, of course, is an ever growing problem because we are a very busy, a growing city. And you know our public work employees do not go around deliberately filling the curbs up with debris. People, people make debris. And we're constantly trying to educate people to the fact that if they want a clean downtown they're going to have to do their part to keep it clean. You have a lot of new people moving into the City of Elizabeth, some coming from foreign lands where abject poverty was something they lived with everyday and they have not yet been assimilated into our type of society, and it will take a great deal of time for some of them to respect the rights and the properties of other people, and above all, to respect a city that offers them a home in what I consider to be a wholesome environment.

On October 23, 1984, El Diario-La Prensa, a newspaper that publishes in Spanish and serves the Hispanic communities in the New York metropolitan area, carried the following lead headline:

Alcalde de Elizabeth al ataque:

LLAMA 'CERDOS' A LOS HISPANOS

Antes prohibio hablar espanol pag. 3

Translated into English ¹, the headline read:

Elizabeth Mayor on the attack:

CALLS HISPANICS 'PIGS,'

Had previously prohibited the speaking of Spanish pag. 3

"Pigs" is an English translation of "cerdos," the Spanish word used in the headline. The story on page three described the mayor's comments in detail. In this appeal, Dunn does not dispute the accuracy of the story, but contends that the headline was defamatory.

After the "cerdos" article was published, an assistant editor of El Diario attempted to reach Mayor Dunn for his comment. He was unsuccessful. It was alleged that a city official told the editor that city employees were not permitted to talk with El Diario representatives. Subsequently, on October 28, 1984, El Diario published an open letter to Mayor Dunn written by Manuel de Dios Unanue, the paper's Editor-in-Chief. Dunn also claims that parts of this open letter were defamatory.

In his complaint against Gannett New York Newspapers, Inc., the publisher of El Diario, Dunn claimed that the October 23rd headline and October 28th open letter were defamatory. Sitting under diversity jurisdiction, the district court applied New Jersey law to the case. On May 1, 1986, the court denied defendant's motion for summary judgment dismissing the action as to the October 23rd headline, but granted its summary judgment motion as to the October 28th open letter.

Gannett successfully moved for re-argument and, on September 16, 1986, the court vacated that portion of its earlier ruling dealing with the October 23rd headline. It then granted defendant summary judgment as to the headline, holding that the plaintiff had failed to present clear and convincing evidence that the newspaper published the headline with actual malice. The district court reiterated this holding in January 1987 when it denied plaintiff's motion for reconsideration. The court also denied Dunn's request to supplement the record. Dunn appeals from the district court's grants of summary judgment and from the court's denial of his record-supplementing motion.

II.

Applicable summary judgment precepts are familiar. Summary judgment can be granted only if no genuine issue of material fact exists. Rule 56(c), F.R.Civ.P.; Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). An issue is "genuine" only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Id., 106 S.Ct. at 2510. On review, this court applies the same test that the district court should have adopted. Marek v. Marpan Two, Inc., 817 F.2d 242, 244 (3d Cir.1987). We now proceed to examine the applicable legal precepts that govern publication of El Diario's October 23rd headline.

III.

Dunn contends that he has produced sufficient evidence to create a genuine issue as to the states of mind of the newspaper's editors at the time of publication of the October 23rd "cerdos" headline. These states of mind are very relevant to the first amendment's concept of actual malice.

Dunn's argument requires us to pursue both state and federal law inquiries. We must determine (1) whether the defendant has harmed the plaintiff's reputation within the meaning of state law; and (2) if so, whether the interposition of the first amendment precludes recovery. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1077 (3d Cir.), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Steaks Unltd., Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir.1980). In this diversity case, our first determination, then, must be whether Dunn has made out a proper claim under New Jersey law. See Jenkins v. Westinghouse Broadcasting & Cable, Inc., 829 F.2d 403 (3d Cir.1987).

A.

Those who write or publish material that tends to injure an individual's reputation may be subject to liability under New Jersey law in a libel action if the material is false. Maressa v. New Jersey Monthly, 89 N.J. 176, 445 A.2d 376, 383-84, cert. denied, 459 U.S. 907 (1982); see Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 117 A.2d 889, 891 (1955). For a libel action to qualify, the disputed statement must be an assertion of fact. Karnell v. Campbell, 206 N.J.Super. 81, 501 A.2d 1029, 1033 (1985). The issue then becomes whether the language used is reasonably susceptible of a defamatory meaning. Kotlikoff v. The Community News, 89 N.J. 62, 444 A.2d 1086, 1088 (1982).

It is the function of the court, and not the factfinder, to decide if the contested statement is defamatory on its face. Lawrence v. Bauer Pub. & Printing, Ltd., 89 N.J. 451, 446 A.2d 469, 473, cert. denied, 459 U.S. 999, 103 S.Ct. 358, 74 L.Ed.2d 395 (1982). Words that subject a person to ridicule, hatred, or contempt or which "clearly 'sound to the disreputation' of an individual," are defamatory on their face. Id. If the language at issue is capable of both a defamatory and a nondefamatory meaning, there exists a question of fact for the jury to decide. Id.

Here, the district court determined that "the headline, inasmuch as it proclaims that the plaintiff called Hispanics dirty persons, could be, in the view of some jurors, actionable given what plaintiff actually said." App. at 190. The court, however, granted defendant's motions for summary judgment, concluding that plaintiff did not produce clear and convincing evidence of actual malice. For our purposes, we assume that the October 23rd headline is defamatory under New Jersey law, but agree with the district court that Dunn has not surmounted the formidable first amendment barriers to recovery.

B.

A brief digest of first amendment strictures on the law of defamation, also very familiar, is in order. In New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964), the Court recognized that "debate on public issues should be uninhibited, robust, and wide open, and ... may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." To give effect to this precept, the Court held that proper fealty to the first amendment commands that a public official may not recover for defamatory falsehood relating to his official conduct unless he proves with "convincing clarity" that the statement was made with "actual malice": "with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at...