Contemporary Mission, Inc. v. New York Times Co.

• Decision Date: 16 March 1988
• Docket Number: No. 574,D,574
• Citation: 842 F.2d 612
• Parties: 15 Media L. Rep. 1180 CONTEMPORARY MISSION, INC., Reverend Patrick J. Berkery, Reverend Robert J. Cassidy, Reverend John F. Coyne, and Reverend John T. O'Reilly, Plaintiffs- Appellants, v. The NEW YORK TIMES COMPANY, Defendant-Appellee. ocket 87-7666.
• Court: U.S. Court of Appeals — Second Circuit

Page 612

842 F.2d 612

15 Media L. Rep. 1180

CONTEMPORARY MISSION, INC., Reverend Patrick J. Berkery,

Reverend Robert J. Cassidy, Reverend John F.

Coyne, and Reverend John T. O'Reilly, Plaintiffs- Appellants, v. The NEW YORK TIMES COMPANY, Defendant-Appellee.

No. 574, Docket 87-7666.

United States Court of Appeals,

Second Circuit.

Argued Jan. 21, 1988.

Decided March 16, 1988.

Father John T. O'Reilly, pro se (Kenneth R. Davis, William D. O'Reilly, Stamford, Conn., of counsel), for plaintiffs-appellants.

John G. Koeltl, New York City (Debevoise & Plimpton, James C. Goodale, Edwin

G. Schallert, New York City, of counsel), for defendant-appellee.

Before FEINBERG, Chief Judge, TIMBERS and KEARSE, Circuit Judges.

FEINBERG, Chief Judge:

Contemporary Mission, Inc., a not-for-profit organization of Catholic priests with its principal place of business in Connecticut, and four of its member priests--Father Patrick J. Berkery, Father Robert J. Cassidy, Father John F. Coyne and Father John T. O'Reilly (collectively, the priests)--appeal from a judgment of the United States District Court for the Southern District of New York, Vincent L. Broderick, J., dismissing, on motion by The New York Times Company (the Times) for summary judgment, appellants' defamation action against the Times. The action was based upon an article in the November 1, 1980 edition of The New York Times (the Times ) entitled "Westport Priests Beset by Church and U.S. on Status". For the reasons given below, we affirm the judgment of the district court.

I. Background

The underlying facts of this case, which are described in greater detail in Judge Broderick's thorough opinion reported at 665 F.Supp. 248 (S.D.N.Y.1987), can be summarized as follows. On November 1, 1980, the Times published an article, written by Times reporter Diane Henry, which described certain religious and business controversies involving Contemporary Mission and its member priests. The article stated that the priests, who were living in Westport, Connecticut, "with all the trappings of wealth," had until recently been "supporting themselves with a large tax-exempt mail-order business" offering various self-improvement products. The article stated that the priests' religious status was being challenged by officials of their own church and by several governmental agencies. It addressed, among other things, (1) recent challenges by the Internal Revenue Service, the United States Postal Service and the State of Connecticut to Contemporary Mission's mail-order business; (2) allegations made nearly a decade earlier that documents submitted by three of the priests in support of their 1971 ordinations had been forged; and (3) questions concerning the priests' current religious status.

Shortly after publication of the article, appellants brought this diversity action seeking $20 million in damages. After a series of amendments to their complaint, appellants ultimately challenged the following 14 statements in the Times article as libelous (the quoted language is taken verbatim from the second amended complaint):

1. Church officials in St. Louis, led by John Cardinal Carberry, accused the priests [of the Mission] of forging documents for their ordinations.

2. In a recent interview, Msgr. Andrew T. Cusack, an official with the Bridgeport (Ct.) Diocese, which now has jurisdiction over the mission (sic) priests, said they were 'inactive' and 'seeking reconciliation.' In a letter to the Government, he also said they were not recognized by the diocese and were 'unable to function as Catholic priests.' But the Postal Service says it has another letter, allegedly sent by the monsignor, that says 'their ordination and current canonical efforts have the full recognition of the church.' The monsignor has denied writing that letter.

3. But in 1977, the State of Connecticut got a cease and desist order against them for failing to deliver merchandise.

4. Ordinations Called Forged. ¹

5. The group's activities prompted some church officials to call them clerical dilettantes, and Cardinal Carberry refused to ordain them. Father Berkery had already been ordained, and the others were ordained in 1971 in Connecticut by a visiting Bishop from Ghana.

But that same year the Bishop, the Most Rev. Peter K. Sarphong (sic) later wrote to the Vatican saying he had been 'misled' when he accepted documents supporting the ordinations of the priests, which St. Louis officials said had been forged.

The mission priests disclaimed knowledge of the forged documents, and they accused Cardinal Carberry, who is now retired, of conducting a smear campaign against them.

Since then the priests have been in a kind of canonical limbo, and it is difficult to clearly determine their status.

6. In a separate action, the Postal Service charged them with fraud in the bath-oil sales.

7. As evidence of the honesty of their operation, the priests point to a Federal report saying the United States Attorney's office in Connecticut had declined, in January 1979, to prosecute charges of mail fraud against them because "the firm does supply the products in most instances."

8. Father O'Reilly later married the lead singer in the touring company and is now divorcing her.

9. Under normal circumstances, Father O'Reilly's marriage would mean his automatic excommunication from the church, according to experts on canon law. But Father O'Reilly said he had switched to the Eastern Rite of the Catholic Church, which allows married priests.

10. Five Roman Catholic priests whose religious status is being challenged by officials of their own church, as well as by three Federal agencies, say they have been misunderstood and harassed because they are unconventional clerics.

11. The priests, who insist they are not rich, argue that there is no law prohibiting churches from running a mail order house, that they run an honest business and have used the money to finance their work. Yet the Mission's vast public court record with the Government, individuals and corporations raises questions about whether the priests may have cloaked a profitable business in the guise of a religious, tax-exempt organization.

12. The priests say that Mission is a pious society and that its members perform all traditional priestly functions and good works, but other priests contradict them.

13. In St. Louis a decade ago, the seminarians dreamed of using profits from their musical talents to support their labors for the poor.

14. Father O'Reilly and Father Berkery said they had conducted many services at St. Catherine's Church in Greenwich, but the pastor of the church, the Rev. Vincent J. O'Connor, contradicted them.

The allegations made by appellants with respect to these statements are discussed below.

In July 1987, Judge Broderick ruled on various motions pending before him. He denied the Times' motion to dismiss new claims in the second amended complaint on statute of limitations grounds, holding that adequate notice had been given by appellants' original complaint so that the second amended complaint related back to the time of the commencement of the action. The judge also denied appellants' request for additional discovery pursuant to Fed.R.Civ.P. 56(f). Addressing the merits of the Times' summary judgment motion, the court determined that statements 2 (in part), 3, 6, 7, 8, 9 and 13 were either not defamatory or not false or both. The judge also held that appellants were limited purpose public figures with respect to the religious and business controversies described in the article and therefore appellants could not recover unless there is "clear and convincing proof" that the article was published "with knowledge of its falsity or with reckless disregard for the truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). Judge Broderick granted the Times' motion for summary judgment as to all of appellants' claims and dismissed the complaint. The judge concluded that appellants had "not offered a scintilla of evidence to satisfy their burden of proving that the Times knew that the statements it published were false.... Plaintiffs have simply not shown that the Times 'entertained serious doubts about the veracity of the publication,' or that there were signs which should have tipped the Times off to any blatant inaccuracies in the article." 665 F.Supp. at 270 (emphasis in original). This appeal followed.

II. Discussion

A. Appellants' Status as Limited Purpose Public Figures

We must first consider whether Judge Broderick correctly determined that appellants were limited purpose public figures with respect to the challenged statements. Appellants' status as public or private figures determines the standard of fault that appellants must establish to succeed on their claims. In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), the Supreme Court held that a state cannot award damages to a "public official" for defamatory statements concerning his official conduct absent a showing that the statements were published with "actual malice." This standard was extended to "public figures" in Curtis Publishing Co. v. Butts, 388 U.S. 130, 162-63, 87 S.Ct. 1975, 1995-96, 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring), and in Gertz, 418 U.S. at 352, 94 S.Ct. at 3013, the Court indicated that parties who are not public figures for all purposes may still be public figures with respect to a particular controversy. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) five members of the Supreme Court (in three separate opinions) indicated that to apply the "actual malice" standard under Gertz a court must also determine that the contested statement is a matter of public concern.

In Gertz, the Court determined that the plaintiff there, a lawyer tangentially involved in the prosecution of a policeman, was not a limited...