Bon Air Hotel, Inc. v. Time, Inc.

• Decision Date: 28 January 1969
• Docket Number: Civ. A. No. 1171.
• Citation: 295 F. Supp. 704
• Parties: BON AIR HOTEL, INC., Plaintiff, v. TIME, INC., and Dan Jenkins, Defendants.
• Court: U.S. District Court — Southern District of Georgia

295 F. Supp. 704

BON AIR HOTEL, INC., Plaintiff, v.TIME, INC., and Dan Jenkins, Defendants.

Civ. A. No. 1171.

United States District Court S. D. Georgia, Augusta Division.

January 28, 1969.

Cumming, Nixon, Eve, Waller & Capers, Augusta, Ga., for plaintiff.

Fulcher, Fulcher, Hagler, Harper & Reed, Augusta, Ga., Harold R. Medina, Jr., Cravath, Swaine & Moore, New York City, for defendants.

ORDER

LAWRENCE, District Judge.

On December 20, 1967, Judge Scarlett overruled the Motion for Summary Judgment by defendants addressed to the First Amendment issue as related to the article concerning the Bon Air Hotel and the Masters Tournament in the April 6, 1964 issue of SPORTS ILLUSTRATED.He sanctioned an interlocutory appeal under 28 § 1292(b), which was taken.The Court of Appeals declined to allow the appeal.Subsequently the Supreme Court denied certiorari.393 U.S. 859, 89 S.Ct. 131, 21 L.Ed.2d 127.¹

At an informal pretrial conference on November 4th last counsel for defendants announced their intent to press the constitutional issue at the trial in the face of the refusal of the Court of Appeals and the Supreme Court to entertain an interlocutory review.Subsequently, in a memorandum furnished me counsel stated: "Despite the doubts expressed at the preliminary pretrial conference as to the power of this Court again to consider the constitutional issues in this case, additional research has convinced us that the denial by Judge Scarlett of defendants' Motion for Summary Judgment is not law of the case as to the constitutional issues raised on that motion and defendants may again raise those issues at trial."

Believing that a bolder approach might be in order, I wrote to counsel on January 20th inquiring as to the power of a District Judge under Rule 60(b) to review at this stage the prior decision of Judge Scarlett and whether if authority to vacate and reverse exists the power is properly exercisable under all the circumstances.

The decision in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, which was handed down a month before the article about the Bon Air came out in SPORTS ILLUSTRATED placed plaintiff's case upon somewhat shaky ground at the start.The Court held that no damages are recoverable by a public official for defamatory falsehood relating to his official conduct unless actual malice is proven.While the action involved libel of public officials there was a prophetic monition in a foot-note that no need existed "here to determine the boundaries of the `official conduct' concept."

Whatever solid ground plaintiff's case originally stood on has been steadily eroded by the sweep and flow of First Amendment freedoms through new and wider channels.To summarize the year-by-year developments in constitutional interpretation in this area:

1966—Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L. Ed.2d 582

Here the Supreme Court, using New York Times as an analogy in construing Sections 7and8 of the National Labor Relations Act, held that an official of an employer who brought a libel action against a union could recover for defamatory statements made by defendant during a labor dispute only when they were published with knowledge of or with reckless disregard of their falsity.

1966—Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597

Here the ruling in New York Times v. Sullivan was extended to defamation by a newspaper in connection with the performance of public duties by a former supervisor of a county recreation area.

1967—Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456

In a suit for an invasion of privacy against LIFE magazine in violation of a state statutethe Supreme Court applied the rule of New York Times to false reporting of "matters of public interest" and denied any recovery in the absence of proof of actual malice.

1967—Curtis Publishing Co. v. Butts;Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094

In these two casesthe Court extended New York Times by the inclusion in its concept of "public figures."A recovery was denied in Walker.The verdict for Butts was permitted to stand by a closely divided court.The Chief Justice concurred in the result in that case but not in the deviation from the actual malice rule suggested by four Justices who would have a recovery in libel limited to instances of extreme departure from standards of investigating and reporting ordinarily adhered to by responsible publishers.Butts was held to be a public figure and Walker was classified as one by reason of his thrusting his personality into an area of "important public controversy."

1967—Beckley Newspaper Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248.

The Court held here that editorials criticizing the official conduct of a clerk of court fell short of showing that the failure of the newspaper to make a prior investigation as to the truth of the statements presented a jury question with respect to reckless disregard for the truth.

1968—St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262.

The Supreme Court ruled in this case that there could be no recovery of damages for televised defamatory statements made by a candidate for public office concerning a sheriff in the absence of proof of actual malice.

1968—United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 404 F.2d 706, 9th Cir., November 18, 1968

This case involved televised and radio broadcasts and press releases by Columbia concerning inaccuracies of tests of clinical specimens by mail order testing laboratories.In affirming (on a different and federal ground)the decision of the District Court granting a summary judgment to defendantthe Court of Appeals for the Ninth Circuit said:

"It is, of course, not possible to say just how far the Court will continue to carry such extensions.But unless all other areas, not merely those of legitimate general interest but also those of affecting personal concern to the public, are to be artificially ignored, we are not able to see how the path upon which the Court has been moving can be regarded as having reached an end."

1969—Time, Inc. v. McLaney, 406 F.2d 565, 5th Cir.

Here the District Judge overruled defendant's Motion for Summary Judgment but certified cause for interlocutory appeal.Where a year before the Court of Appeals for this Circuit had declined to allow an appeal in the Bon Air case it granted the application in McLaney.In this case the authors after an investigation of certain rumors and leads wrote an article published in LIFE magazine under the title of "The Scandal in the Bahamas."The piece dealt with the migration from Cuba of professional gamblers, including McLaney who had managed one of Havana's big casinoes.In the January, 1967 election in the Bahamas he supported one of the political parties and provided free airlifts for its candidates."The mob", the article said, "always tried to hedge its bets."

After close examination and analysis of the evidence before it on the Motion for Summary Judgmentthe Court of Appeals concluded:

"* * * the constitutional privilege extends to discussions by specific individuals, not associated with any government, if those individuals are involved in matters of important public concern.Such was the case of the plaintiff here.He had injected himself into an election campaign in a small foreign country in which the announced policy of the opposition to the present government was the elimination of racketeer gambling.He had supported the effort of this reform government by contributing substantial material aid, and thus lent a direct influence to the election of a national government for the country.Such activities as he engaged in, and his conduct as such a participant, are the proper subject of inquiry and of public interest."

In the light of the progression of New York Times I certainly do not want to listen for a week or so to evidence as to whether the exterior of the Bon Air Hotel had a "whitewashed face" in 1964; whether there was ample room for guests to walk between a dresser and bed; whether the windows were usually jammed; whether the hotel was noisy at night; whether guests of the hotel registered at their own risk; whether nocturnal users of fire escapes wore high heels; whether the white-coated waiters were ancient and drowsy, and so on—as I say, I do not relish going through an extended trial of this libel suit and then have the Court of Appeals instruct me (if plaintiff prevails) that defendant's Motion for Summary Judgment should have been sustained on the First Amendment issue because of lack of actual malice.

Does the element of public interest exist here?The focus of the article was the decline into dishevelment of the Bon Air Hotel though the general theme was Augusta and the Masters Tournament.According to the author, 100,000 golf enthusiasts visit that city each year when it is played.Millions watch the event on television.For over twenty years prior to 1960 the Bon Air had been a landmark of the Masters scene.It was part and parcel of the Tournament.As the article says, "The Bon Air was the place to be, and to be seen."During the period 1961-1964 the hotel was closed for fifty-one weeks of each year and was opened only for the week of the Masters.The author had stayed at or visited the Bon Air for thirteen years and had observed first hand its alleged decline from the status of grande dame into the station of a dowdy, decrepit and disheveled old woman.Jenkins was requested by the Editor of the magazine to write an article about the "surroundings" in which the tournament is held.In preparing the piece he decided that readers would be interested in a story concerning the accommodations at Augusta available to players and spectators.The fact that the April 6, 1964 issue of SPORTS ILLUSTRATED was largely devoted to the Masters Tournament indicates the high...