Belli v. Curtis Pub. Co.

• Citation: 25 Cal.App.3d 384,102 Cal.Rptr. 122
• Parties: Melvin M. BELLI, Plaintiff and Appellant, v. The CURTIS PUBLISHING COMPANY, a corporation, et al., Defendants and Respondents. Civ. 28338.
• Decision Date: 10 May 1972
• Court: California Court of Appeals

Page 122

102 Cal.Rptr. 122

25 Cal.App.3d 384

Melvin M. BELLI, Plaintiff and Appellant, v. The CURTIS PUBLISHING COMPANY, a corporation, et al., Defendants and Respondents.

Civ. 28338.

Court of Appeal, First District, Division 1, California.

May 10, 1972.

Melvin M. Belli, Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, for plaintiff-appellant.

Pillsbury, Madison & Sutro, John B. Bates, Noble K. Gregory, Walter R. Allan, San Francisco, for defendants-respondents.

SIMS, Associate Justice.

Plaintiff has appealed from a judgment entered in favor of the defendants following the granting of their motion for a summary judgment in an action in which he sought general damages of $1,000,000 and exemplary damages of $1,000,000 for defamation of character in two articles authored respectively by defendant Richard Warren Lewis and defendant Edward Linn, published in its magazine, The Saturday Evening Post, by defendant The Curtis Publishing Company, and apparently distributed by defendant Golden Gate Magazine Company. ¹ Plaintiff acknowledges that the defendant publisher is entitled to the qualified privilege afforded by the First Amendment of the United States Constitution to the publication of matters of public interest about a public figure. Nevertheless he insists that the record demonstrates that there is a triable issue of fact as to whether the alleged defamatory matter was published with actual malice, that is with knowledge that it was false, or in reckless disregard of whether it was true or false. As a postulate for that conclusion he urges that it is not necessary to show that knowledge of the falsity of the material published be brought home to the publisher's editor-in-chief or managing editor, as distinguished from others having a responsibility for publication. He also asserts that it was not necessary to adduce proof of special damages because the articles were libelous per se.

It is concluded on an examination of the record that there is no evidence to raise a triable issue with respect to malice under constitutional principles. The judgment must be affirmed and it is unnecessary to consider plaintiff's contention with respect to proof of damages.

The action involves an article by Lewis entitled, 'A Flashy Lawyer for Oswald's Killer,' which was published February 8, 1964 after plaintiff had been retained to defend Jack Ruby on charges that he murdered the alleged assassin of President John F. Kennedy, and an article by Linn entitled 'The Untold Story of Jack Ruby,' which was published on July 25 and August 1, 1964 after the trial of Ruby had resulted in his conviction. For purposes of the motion for summary judgment the defendants conceded that the court could assume that the articles were false and that they criticized and defamed the plaintiff, but they insisted that there was no evidence to show that the publisher had knowledge of the falsity of any such statement, in either article or recklessly disregarded whether it was false or not. ²

The record consists of the depositions of the plaintiff, of Linn, of William A. Emerson, Jr., the managing editor of the publication, and of Otto Friedrich the assistant managing editor of the publication in charge of articles; of plaintiff's answers to three sets of interrogatories submitted to him by the defendants; and of plaintiff's admissions that transcripts of two tapes correctly set forth interviews he gave to author Lewis and to another interviewer.

When this material is winnowed down the plaintiff is left with the following contentions: that there was malice because the publisher had knowledge of false statements in the Linn article because it was inconsistent with the recorded tapes of the Lewis interviews; that there was malice because the Linn article was published in reckless disregard of whether it was true or false as evidenced by the fact it was inconsistent with the Lewis tapes and with what must have been developed if the publisher did the research it claimed to have done.

The record reveals that the matters of which plaintiff complained in the Lewis article were all matters which he had divulged, regardless of their truth or falsity, in his interviews with Lewis. His argument on appeal is directed solely to the contents of the Linn article. The evidence bearing on the remaining points is reviewed below.

I

The parties agree that this case is controlled by constitutional principles recently exposited as follows: 'In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964), the Court has considered the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press. New York Times held that in a civil libel action by a public official against a newspaper those guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with 'knowledge that it was false or with reckless disregard of whether it was false or not.' Id., at 280, 84 S.Ct., at 726, 11 L.Ed.2d at 706, 95 A.L.R.2d 1412. The same requirement was later held to apply to 'public figures' who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of 'public officials' or 'public figures,' usually, but not always, against newspapers or magazines. Common to all the cases was a defamatory falsehood in the report of an event of 'public or general interest. " (Rosenbloom v. Metromedia (1971) 403 U.S. 29, 30, 91 S.Ct. 1811, 1813, 29 L.Ed.2d 296, 304--305, fns., collecting the cases referred to, omitted.)

In his answer to defendants' third set of interrogatories plaintiff acknowledged that he was a public figure and that the trial of Jack Ruby was a matter of public interest. The applicability of the New York Times rule cannot be questioned. (See Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 154--155 and 162, 87 S.Ct. 1975, 18 L.Ed.2d 1094, Warren, C.J., concurring (reh. den. (1967) 389 U.S. 889, 88 S.Ct. 11, 19 L.Ed.2d 197); Rosenbloom v. Metromedia, supra, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, 316; Time, Inc. v. McLaney (5th Cir. 1969) 406 F.2d 565, 573 (cert. den. (1970) 395 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239); Cepeda v. Cowles Magazines and Broadcasting, Inc. (9th Cir.1968) 392 F.2d 417, 418--420 (cert. den. (1968) 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110; Tilton v. Cowles Publishing Company (1969) 76 Wash.2d 707, 716--717, 459 P.2d 8, 13--14, cert.den. (1970) 399 U.S. 927, 90 S.Ct. 22, 38, 26 L.Ed.2d 792; Grayson v. Curtis Publishing Co. (1968) 72 Wash.2d 999, 1006--1007, 436 P.2d 756, 761--762; and Annotation, Defamation--Public Figures--Malice (1968) 20 A.L.R.3d 988, § 4, p. 1002; and Libel and Slander--Public Official (1968) 19 A.L.R.3d 1361, § 8, p. 1379. Cf. Belli v. Orlando Daily Newspapers, Inc. (5th Cir.1967) 389 F.2d 579, 587--588 (cert. den. (1968) 393 U.S. 825, 89 S.Ct. 88, 21 L.Ed.2d 96).)

In New York Times the court stated, 'This Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied.' (376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686. See also Rosenbloom v. Metromedia, supra, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, 318.)

In adopting the foregoing rule, and rejecting the contention that truth alone should be a defense, the court in New York Times observed: 'A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions--and to do so on pain of libel judgments virtually unlimited in amount--leads to . . . 'self-censorship.' Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. . . . The rule thus dampens the vigor and limits the variety, of public debate. It is inconsistent with the First and Fourteenth Amendments.' (376 U.S. at p. 279, 84 S.Ct. at p. 725, fn. omitted.)

The appropriateness of so reviewing the facts on motion for summary judgment has been recognized. In Time, Inc. v. McLaney, supra, the court exercised its discretion to entertain an appeal from the denial of such a motion. In recognizing that the situation was unusual the court commented, 'The subject matter of this litigation, involving, as it does, the very serious and timely question of how far the First Amendment guarantee of freedom of the press may still be impinged upon by actions for libel, places some cases in a somewhat different category. This follows when the trial court and this court jointly consider that the failure to dismiss a libel suit might necessitate long and expensive trial proceedings, which, if not really warranted, would themselves offend the principles (of free expression) enunciated in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, because of the chilling effect of such litigation.' (406 F.2d at p. 566. See also Thompson v. Evening Star Newspaper Company (1968) 129 U.S.App.D.C. 299, 394 F.2d 774, 776 (cert. den. (1968) 393 U.S. 884, 89 S.Ct. 194, 21 L.Ed.2d 160); Washington Post Co. v. Keogh (1966) 125 U.S.App.D.C. 32, 365 F.2d 965, 967--968 (cert. den. (1966) 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548); and Tilton v. Cowles Publishing Company, supra, 76 Wash.2d 707, 720, 459 P.2d 8, 15--16.)

In the exercise of this power courts have often either approved the granting of a summary judgment or reversed for failure to grant a summary judgment, a motion for directed verdict or a motion for judgment notwithstanding the verdict in cases in which ...