Afro-American Publishing Co. v. Jaffe

• Decision Date: 23 August 1966
• Docket Number: No. 18363.,18363.
• Citation: 366 F.2d 649
• Parties: AFRO-AMERICAN PUBLISHING CO., Inc., Appellant, v. Eli JAFFE, t/a Douglas Pharmacy, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

366 F.2d 649 (1966)

AFRO-AMERICAN PUBLISHING CO., Inc., Appellant, v. Eli JAFFE, t/a Douglas Pharmacy, Appellee.

No. 18363.

United States Court of Appeals District of Columbia Circuit.

Argued October 18, 1965.

Decided On Rehearing August 23, 1966.

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Mr. George H. Windsor, Washington, D. C., with whom Messrs. George E. C. Hayes and Julian R. Dugas, Washington, D. C., were on the brief, for appellant.

Miss Joyce Capps, Washington, D. C., for appellee.

Before BAZELON, Chief Judge, and FAHY, WASHINGTON,^* DANAHER, BURGER, WRIGHT, McGOWAN and LEVENTHAL, Circuit Judges, sitting en banc.^**

Decided On Rehearing En Banc, August 23, 1966.

LEVENTHAL, Circuit Judge.

This is an appeal from a judgment in favor of appellee (plaintiff) in an action for libel and for invasion of privacy, based on an article and a photograph in the October 14, 1961 issue of the Washington Afro-American ("Afro"), published by appellant (defendant) corporation. It was stipulated that plaintiff sustained no economic loss as a result of the publication. The court, which tried the case without a jury, found injury to the plaintiff consisting of his disturbance and concern as a result of the publication and awarded $500 as compensatory damages. The court also ruled that the publication was made with malice, said malice being presumed from the nature of the published words and the lack of justification therefor, and awarded punitive damages in the amount of $2000. The court stated that its awards were based on both counts of the complaint, i. e., libel, and invasion of privacy. As to compensatory damages, we affirm. As to punitive damages, we reverse and remand.

The material facts are not complicated and for the most part require no resolution of dispute. Plaintiff, a pharmacist, operates a local drugstore. About eighty percent of his customers are Negroes. He and his wife are white, but his employees are all Negroes. His store is a retail outlet for publications of interest to Negro readers. From 1954 until June 1961, it was one of some 400 retail outlets in the Washington area selling the Afro, a newspaper of some 11,000-12,000 circulation, published twice weekly.

In June 1961 plaintiff telephoned Mr. C. Sumner Stone, editor and manager of the Afro, to discuss headlines he considered inflammatory, and to voice his view that the newspaper was not contributing to a better understanding between the races. The two men had a general conversation, and there was no talk of any cancelation.

In September 1961 plaintiff telephoned the circulation department in order to cancel his handling of the Afro. His call was routed to Mr. Stone, who was responsible for maintaining circulation in addition to news and editorial policy. When Mr. Stone asked why plaintiff wanted to cancel, plaintiff responded that the paper's headlines and policies were causing racial mistrust and ill feeling and directing animosity against himself. A week or two later Mr. Stone went to the store and asked again why plaintiff wanted to cancel, and was told again that plaintiff thought the paper was spreading racial hatred and distrust. Apparently at this time plaintiff also raised the point that the newspaper had carried a paid advertisement of the Communist Party, and seemed uninterested when Mr. Stone noted that the same ad had been carried by prominent New York and Washington newspapers. Mr. Stone became angry and walked out.

In the October 14, 1961 edition of the Afro, Mr. Stone's column, "A Stone's Throw," was captioned: "ONE MAN'S WAR IN SE AGAINST THE AFRO." The subject-matter was the refusal of the proprietor of the named drugstore to continue to handle Afro. Mr. Stone reiterated in his column, what he said he had told plaintiff in conversation, that plaintiff's action, along with plaintiff's accusation that Afro was spreading racial hatred and distrust, made plaintiff appear to be a bigot. The column further stated that plaintiff had told Mr. Stone a story illustrating the ignorance of his customers and the low level of intelligence of the people in the neighborhood. Plaintiff's trial testimony denying this assertion was obviously given credit over Mr. Stone's testimony. Plaintiff's witnesses testified that he was not bigoted and enjoyed a good reputation for racial relations; these assertions were given credit and indeed were not disputed.

I

Consideration of the various libel questions presented by this case might not be necessary if the claim of invasion of privacy adequately supported the recovery. A common law action for invasion of privacy is maintainable in the District of Columbia. Its existence is recognized in well-reasoned District Court opinions,¹ and is implicit in Bernstein v. National Broadcasting Co.² It represents a vindication of the right of private personality and emotional security, the essence of the interest protected being aptly summarized in Judge Cooley's perceptive phrase, "the right to be let alone."³ The historic 1890 article of Louis D. Brandeis and Samuel Warren⁴ stressed the need for solitude and privacy as a counterpoise to the intensity and complexity of contemporary civilization. That was written at a time when privacy was imperiled by the rise and conspicuous success of the yellow journalism of the 19th century. The action is no less imperative under the conditions of today, when privacy is imperiled by the communications explosion, and by a deplorable eruption of all manner of mechanical and electronic devices for snooping.

However, the right of privacy is not an absolute. The Restatement of Torts states that liability attaches to a person "who unreasonably and seriously interferes with another's interest in not having his affairs known to others."⁵ An action is maintainable even when all statements made are completely true and accurate.⁶ Different patterns of interference are reflected in the cases, and a variety of sub-doctrines have evolved.⁷ The right of privacy stands on high ground, cognate to the values and concerns protected by constitutional guarantees.⁸ But this must be accommodated to the need for reasonable latitude for the selection of topics for discussion in newspapers. That right of the press, likewise supported by constitutional guarantees, is crucial to the vitality of democracy. The courts are called upon here, as elsewhere in the law, to harmonize individual rights and community interests. In appraising challenged violations of privacy a "distinction can be made in favor of news items and against advertising use."⁹

We think the trial court erred in finding that the case at bar involved an actionable invasion of privacy. When a proprietor of a news vending outlet in a predominently Negro neighborhood discontinues the handling of a newspaper oriented to Negro readers, the matter is appropriate for newspaper discussion, with pictorial accompaniment, without fear of an overhanging action for invasion of privacy.

II

Although his interest in privacy for his actions and racial sentiments did not give plaintiff an immunity from public discussion, he had, we think, a right to responsible newspaper discussion, which does not descend to the level of false, defamatory statements. We now discuss the reasons why we reject appellant's prayer for dismissal of plaintiff's libel action.

A

The District Court characterized the charges as "tending to bring the plaintiff into contempt, ridicule and disgrace in the community in which he operated his business." The facts support this finding. The finding if anything applied a stricter standard of defamation than defendant was entitled to. Under the ultimate and broader standard a publication is defamatory if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community.¹⁰ Moreover, defamation turns on whether the communication or publication tends, or is reasonably calculated, to cause harm to another's reputation, and it is not necessary for plaintiff to prove that this was its actual result.¹¹

Appellant's publication must be taken as a whole, and in the sense in which it would be understood by the readers to whom it was addressed.¹² The article, captioned ONE MAN'S WAR IN SE AGAINST THE AFRO, stated that plaintiff, by canceling his subscription, "would appear to be a bigot," and that he told a story about a customer's ignorance which he said illustrated the low level of intelligence of the people in the neighborhood near his drugstore. These false statements were critical in the total impact of the article. The article contained other items that were true, but in the setting already described these only reinforced the defamatory impression.¹³ Partial truths are not necessarily even mitigating in this branch of the law, for the defamer may be the more successful when he baits the hook with truth. What counts is not the painstaking parsing of a scholar in his study, but how the newspaper article is viewed through the eyes of a reader of average interest.

It suffices, in support of the judgment, that the column under discussion would be reasonably understood by the average reader in the community concerned to signify that plaintiff is a bigot, racially prejudiced, and scornful of the Negro race.

Appellant contends that as a matter of law the article is not libelous, since Mr. Stone did not flatly state that plaintiff was prejudiced, and because it is not a statement of fact about plaintiff's conduct but a statement of opinion about his attitude. Where readers would understand a defamatory meaning liability cannot be avoided merely because the publication is cast in the form of an opinion, belief, insinuation or even question.¹⁴ A statement about one's attitude is defamatory if it tends to lower him in the esteem of the community. See Christopher v. American News Co., 171 F.2d 275 (7th Cir. 1948), where it was held actionable to charge that one is pro-Nazi.

B

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