Berg v. PRINTERS'INK PUB. CO.

• Decision Date: 14 July 1943
• Citation: 54 F. Supp. 795
• Parties: BERG v. PRINTERS' INK PUB. CO., Inc.
• Court: U.S. District Court — Southern District of New York

54 F. Supp. 795

BERG v. PRINTERS' INK PUB. CO., Inc.

District Court, S. D. New York.

July 14, 1943.

Bondy & Schloss, of New York City, (Norman Winer, of New York City, of counsel), for plaintiff.

Isaac W. Digges, of New York City (Gilbert H. Weil, of New York City, of counsel), for defendant.

BRIGHT, District Judge.

Defendant moves to dismiss the complaint in this action brought against a publisher to recover damages for an alleged libel claimed to exist in an article entitled "Dusting Off Dr. Berg", written by Max Wylie of the Radio Department of N. W. Ayer & Son, Inc.

All of the facts alleged in the complaint, or which can by reasonable and fair intendment be implied from the allegations thereof, are deemed admitted (Triggs v. Sun Printing & Pub. Ass'n, 179 N.Y. 144-153, 71 N.E. 739, 66 L.R.A. 612, 103 Am.St.Rep. 841, 1 Ann.Cas. 326), except innuendos of which the challenged article is not susceptible. Naylor v. Variety Inc., 180 App.Div. 763-765, 167 N.Y.S. 772; Hall v. Binghamton Press Co., 263 App. Div. 403-411, 33 N.Y.S.2d 840. It is not the purpose of innuendo to graft a meaning upon or to enlarge the matter set forth, but merely to explain the application of the words used; and it must not put upon the words used a construction broader than they will bear. Huntly v. Empire Engineering Corp., 2 Cir., 211 F. 959-963; Hills v. Press Co., 122 Misc. 212, 202 N.Y. S. 678, affirmed without opinion 214 App. Div. 752, 209 N.Y.S. 848; O'Connell v. Press Pub. Co., 214 N.Y. 352-360, 108 N.E. 556; Cafferty v. Southern Tier Pub. Co., 226 N.Y. 87-91, 123 N.E. 76; Hays v. American Defense Soc., 252 N.Y. 266, 169 N.E. 380.

No special damages are alleged. The complaint, therefore, can be maintained only by establishing that the accused article is libelous per se. Keller v. Loyless, 2 Cir., 205 F. 510; McNamara v. Goldan, 194 N.Y. 315-321, 87 N.E. 440; Sydney v. MacFadden Newspaper Pub. Corp., 242 N.Y. 208-211, 151 N.E. 209, 44 A.L.R. 1419. To be libelous per se it must tend to expose plaintiff to public contempt, obloquy, scorn, aversion, ridicule, hatred, shame or disgrace, or to induce an evil opinion of him in the minds of right thinking persons, and to deprive him of their friendly intercourse in society. Sweeney v. Schenectady Union Pub. Co., 2 Cir., 122 F.2d 288-290, affirmed 316 U.S. 642, 62 S.Ct. 1031, 86 L.Ed. 1727; Triggs v. Sun Printing & Pub. Co., supra; Sydney v. MacFadden, supra.

The complaint alleges that for many years prior to the publication of the article in question, plaintiff was a physician specializing in neurology and psychiatry, of good name and repute widely known in his profession, and as a teacher and public servant, and was an author of books, pamphlets and articles, and known as an authority in his field. The published article is a criticism of two papers written by plaintiff, publicized in newspapers and otherwise, the first entitled "Preliminary Report: A Study of Certain Radio Programs and Their Effects Upon the Audience, Especially Adolescents and Women at the Climacterium"; and the second, "Radio and Civilian Morale".

When the plaintiff thus submitted his professional work to the public and thereby appealed for its support and approval, he was bound to expect, with equal equanimity, praise or blame directed at the work itself. Fair and legitimate criticism is always permitted upon any work to which the attention of the public has been invited. It would not be a libel upon the plaintiff to say that the product of his pen was not good. Whatever is written cannot be said to be libelous except something which decreases or lowers plaintiff in his professional character. Outcault v. New York Herald, 117 App.Div. 534-537, 102 N.Y.S. 685. Merely to disagree, or to state that a claim is rejected would not be libelous. Cook v. Mirsky, 252 App.Div. 496, 299 N.Y.S. 912, affirmed without opinion 278 N.Y. 524, 15 N.E.2d 676. Criticism of so much of another's activities as are matters of public concern is fair, if the criticism, even though defamatory, is based on facts truly stated, free from imputations of corrupt or dishonest motives on the part of the person whose work is criticized, is an honest expression or the writer's real opinion or belief, and is not made solely for the purpose of causing hurt to the other. Mere exaggeration, slight irony or wit, and all those delightful touches of style which go to make an article readable, do not push beyond the limits of fair comment. Facts do not cease to be facts because they are mixed with the fair and expected comment of the story teller who adds to the recital a little touch of his piquant pen. Briarcliff Lodge Hotel v. Citizens-Sentinel Publishers, Inc., 260 N.Y. 106-118, 183 N.E. 193. Restatement of the Law of Torts, § 606. The criticism need not express an opinion with which any person of reasonable intelligence and judgment could possibly agree. Unlike a personal attack upon a public man, the fact that the comment or criticism is one which is not reasonably warranted by the facts upon which it is based or is fantastic or extravagant, is immaterial. If the public is to be aided in forming its judgment upon matters of public interest by a free interchange of opinion, it is essential that honest criticism and comment, no matter how foolish or prejudiced, be privileged. It must not constitute an attack upon the author except in respect to the worth of his work. Restatement, § 606(c); 609(b); § 610. Published work is of public interest and fair criticism or comment on such matters is not actionable in the absence of bad faith or a bad motive. Such criticism usually implies some criticism of the author; and though his private character is no more subject to attack than another's, the qualities which he has shown by what he has published are open to such analysis and comment as an honest and intelligent man might make. Restatement, § 606(e); § 609(c); Potts v. Dies, 77 U.S. App. D. C. 92, 132 F.2d 734; Sullivan v. Meyer, 67 App. D. C. 228, 91 F.2d 301-302. Judge Learned Hand has succinctly stated it—"It is indeed not true that all ridicule * * * or all disagreeable comment * * * is actionable; a man must not be too thin-skinned or a self-important prig * * *." It must "expose the plaintiff to more than trivial ridicule." Burton v. Crowell Pub. Co., 2 Cir., 82 F.2d 154, 155.

Of course, "while every one has a right to comment on matters of public interest, so long as one does so fairly, with an honest purpose, and not intemperately and maliciously, although the publication is made to the general public by means of a newspaper, yet what is privileged is criticism, not other defamatory statements; and, if a person takes upon himself to allege matters otherwise actionable, he will not be privileged, however honest his motives, if those allegations are not true. * * * The single purpose of the rule permitting fair and honest criticism is that it promotes the public good, enables the people to discern right from wrong, encourages merit, and firmly condemns and exposes the charlatan and the cheat, and hence is based upon public policy. The distinction between criticism and defamation is that criticism deals only with such things as invite public attention or call for public comment, and does not follow a public man into his private life, or pry into his domestic concerns. It never attacks the individual, but only his work. A true critic never indulges in personalities, but confines himself to the merits of the subject-matter, and never takes advantage of the occasion to obtain any other object beyond a fair discussion of matters of public interest, and the judicious guidance of the public taste." Triggs v. Sun Printing & Pub. Ass'n, 179 N.Y. 144-154, 71 N.E. 739, 742, 66 L.R.A. 612, 103 Am.St.Rep. 841, 1 Ann.Cas. 326. Any honest comment or criticism of the plaintiff's ability in his activities of public concern is not libelous. If the facts be truly stated, an opinion of his capacity drawn from these facts, if it be fair and honest, may be given without fear of a damage suit. A criticism or comment upon facts correctly stated, even if they reflect against the ability of the plaintiff and upon him personally, would not be libelous. Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95-106, 172 N.E. 139, 72 A.L.R. 913.

Language is not in and of itself libelous unless the language as a whole, considered in its ordinary meaning, naturally and proximately is so injurious to the plaintiff that the court will presume, without any proof, that his reputation has been impaired. O'Connell v. Press Pub. Co., 214 N.Y. 352-358, 108 N.E. 556. The right of criticism of a public character must be taken into account when the court is called upon to determine, as a matter of law, whether an article is libelous per se. Duffy v. New York Evening Post Co., 109 App. Div. 471-475, 96 N.E. 629. The libel law is not a system of technicalities, but reasonable regulations whereby the public may be furnished news and information but not false stories about anyone. When the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal hurt has been done. Cafferty v. Southern Tier Pub. Co., 226 N.Y. 87-93, 123 N.E. 76. The courts will not be astute to discover fine distinctions in words nor scholastic differentiations in phrases, so long as they are sufficiently in touch with affairs to understand the meaning which the man on the street attributes to ordinary every day English. Vitagraph Co. v. Ford, D. C., 241 F. 681-686.

A brief analysis of the two articles criticized in the alleged libel seems necessary. In the preliminary report, plaintiff refers to the fact that tens of millions of persons listen to the radio, some twenty millions of whom, the great majority women, listen to daytime serials, the "soap operas" as they were called upon the argument. The reader is...