Brewster v. Boston Herald-Traveler Corp., Civ. A. No. 55-692-N.

• Citation: 188 F. Supp. 565
• Decision Date: 03 November 1960
• Docket Number: Civ. A. No. 55-692-N.
• Parties: Owen BREWSTER v. BOSTON HERALD-TRAVELER CORP.
• Court: U.S. District Court — District of Massachusetts

188 F. Supp. 565

Owen BREWSTER v. BOSTON HERALD-TRAVELER CORP.

Civ. A. No. 55-692-N.

United States District Court D. Massachusetts.

November 3, 1960.

James D. St. Clair and Blair L. Perry (of Hale & Dorr), Boston, Mass., for plaintiff.

John M. Hall and Jerome E. Andrews, Jr. (of Choate, Hall & Stewart), Boston, Mass., for defendant.

WYZANSKI, District Judge.

Charge to the Jury.

Mr. Foreman and Members of the Jury: You and I have listened to as excellent arguments as I have ever heard in a jury case, and those arguments place upon us a responsibility to do our job as well as counsel have done theirs.

This, as you know, is a case in which the plaintiff, Owen Brewster, claims that he was libeled by the defendant, The Boston Herald-Traveler Corporation, as a result of an editorial appearing in the issue of Friday, August 6, 1954. The case is in this Court because the plaintiff is a citizen of Maine and the defendant is a corporation organized under the laws of Massachusetts, and the amount in controversy is adequate to vest this Court with jurisdiction of the case.

In connection with certain aspects of this controversy federal law governs. That is to say, the relationship between the Judge and the Jury is, for example, controlled by federal rules. Other aspects of the law are controlled by state law, and I shall in some degree make explicit the extent to which state law governs aspects of this case.

Let me at the outset remind you that you, as jurors, are the sole judges of the credibility of the witnesses and of all the facts in the case. Whatever may have been said by the lawyers or may be said by me about the facts is intended merely as guidance to you, and which you are entirely free to reject, for it is you twelve persons who will determine which witnesses you believe and what you regard as the facts.

So far as concerns the law, you are to follow the instructions which I give you upon the law. Needless to say, I may make mistakes with respect to the law, but any errors I make with regard to that will be or have been the subject of exception by counsel, and will be subject to the correction of twelve other persons, to wit, the three Judges of the Court of Appeals and the nine Justices of the Supreme Court of the United States.

In a federal court, a federal judge is free to comment upon the evidence, provided he makes it quite clear to the Jury that any comment made by the Judge is not binding upon the Jury, and it may turn out as I go along in this case that I will make some reference to what I recall as having been the testimony, and how I appraise it and analyze it.

Let me in the most emphatic terms say to you that anything which I say with respect to my recollection of the testimony is not binding upon you. It is your recollection that governs. Let me make it also perfectly plain that anything I say by way of analysis or appraisal of the facts, or of the witnesses, or of any other aspects of the testimony, is not binding upon you.

I hope you will believe that neither by any tone of voice nor by any indication of my head or any gesture or in any other way am I trying indirectly to convey anything to you. Those of you who have been sitting with me for some weeks know that if I want to say something I will say it very plainly and very directly, and do not suppose for a moment that if I wished to convey anything to you I am going to resort to any subterfuge. I am going to do it in the most conspicuous way on the record if I do it.

Many of you, having sat in earlier cases, have heard me give you some general advice with respect to how to weigh the testimony of a witness, and this general advice is just as appropriate in this case as in the other cases in which you have sat. To some of you I have already repeated the famous advice which Mr. Louis D. Brandeis gave in the Balinger Investigation to the Senate Committee, sitting during the Presidency of William Howard Taft.

At that time, in substance, Mr. Brandeis said, "Persons who have to weigh testimony would do well in examining a particular witness to consider four separate items: First, what was his opportunity to observe? Second, what is and has been his capacity to remember? Third, what is his capacity to narrate or recount what he has observed and remembered? And fourth, what is his total comprehension of all the surrounding circumstances which enables him either correctly or incorrectly to place his particular detailed knowledge in the whole picture? And with some presumption I have added a fifth probable test to be used, and that is: to what extent has the man bias or prejudice, self-interest or lack of it, which one either takes into account or uses as a basis of discount?

Now in looking at the testimony in a case of this sort, there is no rule whatsoever which requires a jury to give preference to written testimony or to printed testimony as distinguished from oral testimony. It is entirely up to the jury whether they regard particular items as more or less credible, quite apart from whether the testimony is written or oral.

In this case, unlike any others on which you twelve persons have served with me, there has been taken down a daily transcript, which has been reported on a daily basis, and I have before me the three volumes of the transcript of the oral testimony. To underline the fact that there is no difference, as a matter of law, between oral testimony and written testimony, in this case, when I send you out I am going to send you out not only with the pleadings and with the exhibits but with the three volumes of the transcript of the oral testimony. You will have realized that I did not allow any bench conferences to take place, except with one or two very minor exceptions, and so there is nothing confidential in these three volumes. But let me say to you that it does not follow that the three volumes are absolutely accurate. With all due regard to Mr. Duffey, the court reporter, and his associates, they may not always transcribe with one hundred per cent accuracy what was said, and you are not required to accept their transcript as distinguished from your recollection. It may be that on a particular point or points the twelve of you, or the majority of you, will recall the matter differently, and certainly you are not bound to accept the particular version which has been typed out.

In this case, unlike most cases in which you have sat, I have put to you for your consideration a so-called special verdict, a series of four questions, of which the fourth has the subdivisions (a), (b), (c), and (d). The reason I have done this, as I already explained to you, is in part because there are difficult questions of law which can be more readily segregated and considered by an Appellate Court when I submit a special as distinguished from a general verdict. Also, quite candidly I may say that in a case where there are risks of emotion, a special verdict is more of an admonition to the jury: watch carefully and reason accurately according to the stages of the Charge and of the arguments rather than at large on the basis of passion. The issues which are submitted to you in these questions were worked out yesterday afternoon and have been in the hands of counsel overnight and, as you observed, they addressed their arguments to those issues, which of course I read to you at 9 o'clock, and on which I shall say more later.

Before, however, I come to these particular questions, let me say something quite at-large about the law of libel and about the problems of what may be called choice of law or, as the lawyers denominate it, conflict of laws, so that you may have a better understanding of these questions which are going to be put to you for your verdict.

Speaking very loosely, and subject to a more extended exposition later, let me state to you that in general the law of libel is somewhat to this effect: if a person, directly or indirectly, through an agent or officer or employee, makes a statement in writing, or in print, or in other durable form, which holds another person up to hatred, contempt or ridicule by any substantial portion of the community, the person who makes that statement has made a prima facie defamatory statement which is libelous. A person who has made such a statement may in most communities defend himself entirely if he bears the burden of proving that the statement is true. That is to say, he escapes any responsibility if by the preponderance of the credible evidence, by what the jury believes, he shows that the statement is true.

Although this is in general in most communities the rule, it does not happen to be the rule in the Commonwealth of Massachusetts. In the Commonwealth of Massachusetts, the rule is that if a statement is defamatory but true, the defendant still is responsible if the plaintiff, the complaining person, bears the burden of proving by a preponderance of the credible evidence that the defendant was actuated or motivated by what the statute calls "actual malice."

Now actual malice, as I already indicated in some earlier remarks, is a phrase of art, a skilled phrase which has to be defined for you. Actual malice does not mean negligence. It means something much more serious. It means, as I said to you earlier, in Justice Holmes's phrase, "disinterested malevolence." Malevolence means wickedness, spite, bad will. And disinterested means without any purpose or interest to serve.

In short, it is not actual malice if a person negligently makes a false statement or a true statement. It is not actual malice if somebody makes a statement to serve an interest or purpose which he legitimately has. Thus, and this is of importance, if a person makes a true defamatory statement in bona fide pursuit of an honorable political purpose, he cannot be found to have actual malice.

Actual malice means from the point of view of other people senseless spite, a desire to inflict pain in almost a Jesse Pomeroy...