Brian v. Richardson

• Decision Date: 29 November 1995
• Parties: , 660 N.E.2d 1126, 24 Media L. Rep. 1534 Earl W. BRIAN, Appellant, v. Elliot L. RICHARDSON, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 347

637 N.Y.S.2d 347

87 N.Y.2d 46, 660 N.E.2d 1126, 24

Media L. Rep. 1534

Earl W. BRIAN, Appellant, v. Elliot L. RICHARDSON, Respondent.

Court of Appeals of New York.

Nov. 29, 1995.

Camhy Karlinsky & Stein, New York City (Sheldon D. Camhy and Claudia E. Silbert, of counsel), for appellant.

Milbank, Tweed, Hadley & McCloy, New York City (Toni C. Lichstein and Andrew J. Fields, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

This defamation action concerns an article that was published on the Op Ed page of the New York Times on October 21, 1991. Although plaintiff alleged that the statement falsely accused him of participating in an illegal conspiracy, his complaint was dismissed on the theory that the publication was a nonactionable statement of the author's opinion. The correctness of this determination depends on the proper application of the principles established in Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906, 567 N.E.2d 1270, cert. denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713, in which this Court held that both the immediate context and the broader social context in which a published statement was made should be considered in determining whether the statement is one conveying opinion or fact.

The disputed article, entitled "A High-Tech Watergate," was written by defendant Elliot Richardson, a former United States Attorney General. In the article, defendant described his role as attorney for a software company, Inslaw, Inc., which had sold a computer-based case-tracking system to the United States Department of Justice. According to the article, the Department of Justice soon created a series of "sham" controversies regarding the software's cost and performance and eventually withheld payment, leading to Inslaw's bankruptcy. Meanwhile, defendant charged, the Department made illegal copies of the software.

The focus of the remainder of the article was a series of charges that had come to defendant's attention regarding the use of this pirated software to further a subversive criminal conspiracy. According to the article, defendant had been told by former Justice Department employees that plaintiff Dr. Earl W. Brian, who had been "California health secretary under Gov. Ronald Reagan and a friend of Attorney General Edwin Meese 3d," was "linked to a scheme to take Inslaw's stolen software and use it to gain the inside track on a $250 million contract to automate Justice Department litigation divisions." Plaintiff was identified as the controlling shareholder of a corporation in which Attorney General Meese's wife also had an interest. Further, the article noted, this corporation controlled another computer company that had earlier launched an "aggressive" effort to acquire Inslaw.

The article also referred to claims made by a Michael Riconosciuto, "an out-of-fiction character believed by many knowledgeable sources to have C.I.A. connections," to the effect that Inslaw's software had been "stole[n]" "as part of a payoff to [plaintiff] for helping to get some Iranian leaders to collude in the so-called October surprise, the alleged plot by the Reagan campaign in 1980 to conspire with Iranian agents to hold up release of the American Embassy hostages until after election." According to the article, "other informants from the world of covert operations" not only "confirm[ed] and supplement[ed]" Riconosciuto's statements but also alleged that "scores of foreign governments now have [Inslaw's] software" and that plaintiff had been given the opportunity to sell this software as a reward. These sources identified the conspiracy's goals as follows: "to generate revenue for covert operations not authorized by Congress" and "to supply foreign intelligence agencies with a software system that would make it easier for U.S. eavesdroppers to read intercepted signals."

Defendant acknowledged that his informants "are not what a lawyer might consider ideal witnesses." However, defendant went on to argue that in his view their story was credible. According to defendant's theory, "the picture that emerges from the individual statements is remarkably detailed and consistent, all the more so because these people are not close associates of one another." Further, "[i]t seems unlikely that so complex a story could have been made up, memorized all at once and closely coordinated." Defendant noted that a skeptical free-lance journalist, one Danny Casolaro, had obtained "many leads" from the same informants and had been found dead in a hotel room after telling friends he was investigating evidence "linking Inslaw, the Iran-contra affair and the October surprise." Defendant opined that Casolaro had been murdered, although the authorities had concluded that his death was a suicide.

The remainder of the article discussed defendant's efforts to persuade Edwin Meese's successor, Attorney General Thornburgh, to investigate, as well as the Justice Department's purported resistance to a congressional investigation. The article ended with a review of defendant's own decision as former President Richard Nixon's Attorney General to utilize an independent prosecutor to investigate the Watergate affair. In the article's final paragraph, defendant argued that the question of the need for a special prosecutor to investigate the Inslaw affair was one that should be considered not only by the Justice Department, but also by Congress, other entities within the executive branch and, lastly, the public itself.

Following the article's publication, plaintiff commenced the present action for damages, alleging that it contained false and defamatory assertions about him and that defendant had published these assertions with reckless disregard for their accuracy. Specifically, plaintiff's complaint alleged that he had been defamed by the article's assertions that (1) he was part of a scheme to steal Inslaw's software to gain an unfair business advantage, (2) he was the beneficiary of politically motivated favoritism, (3) he had participated in a morally reprehensible scheme to delay the safe return of American hostages, (4) he had sold stolen software to foreign governments to advance illegal covert activities and (5) he had somehow been involved in the murder of an investigative journalist.

On February 26, 1993, the trial court dismissed the complaint, reasoning that "A High-Tech Watergate" would be understood by a reasonable reader "as a policy argument on a matter of public concern" and that its allegations were therefore not actionable under this Court's opinion in Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906, 567 N.E.2d 1270, supra. The dismissal was affirmed by the Appellate Division, which cited Gross v. New York Times Co., 82 N.Y.2d 146, 603 N.Y.S.2d 813, 623 N.E.2d 1163 as well as Immuno and concluded that the article made clear to "the average reader or listener" that its accusations were " 'merely a personal surmise' " built upon allegations and claims made by others (211 A.D.2d 413, 414, 621 N.Y.S.2d 48, quoting Gross v. New York Times Co., supra, at 155, 603 N.Y.S.2d 813, 623 N.E.2d 1163). Both courts below stressed that the article in question was published on the Op Ed page of the newspaper, a space that is traditionally reserved for the expression of opinion and encouragement of public debate. Plaintiff then took a further appeal by permission of this Court.

The law governing defamation actions involving communications purporting to convey opinion has been explored in a quartet of recent Court of Appeals decisions (Gross v. New York Times Co., supra; 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 589 N.Y.S.2d 825, 603 N.E.2d 930, cert denied 508 U.S. 910, 113 S.Ct. 2341, 124 L.Ed.2d 252; Immuno AG. v. Moor-Jankowski, supra; Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550). The essence of the tort of libel is the publication of a statement about an individual that is both false and defamatory. Since falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false, we have consistently held that a libel action cannot be maintained unless it is premised on published assertions of fact (Gross v. New York Times Co., supra, at 152-153, 603 N.Y.S.2d 813, 623 N.E.2d 1163; Immuno AG. v. Moor-Jankowski, supra; see also, Milkovich v Lorain Journal Co., 497 U.S. 1, 17-21, 110 S.Ct. 2695, 2704-2707, 111 L.Ed.2d 1).

Distinguishing between assertions of fact and nonactionable expressions of opinion has often proved a difficult task. The factors to be considered are: "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to ' "signal * * * readers or listeners that what is being read or heard is likely to be opinion, not fact" ' " (Gross v. New York Times Co., supra, at 153, 603 N.Y.S.2d 813, 623 N.E.2d 1163, quoting Steinhilber v. Alphonse, supra, at 292, 508 N.Y.S.2d 901, 501 N.E.2d 550; accord, Immuno AG. v. Moor-Jankowski, supra). It is the last of these factors that lends both depth and difficulty to the analysis.

The significance of the context factor was explicated in Immuno AG. v. Moor-Jankowski, supra. In that case, we rejected an analysis that would first search a publication for specific factual assertions and then hold those assertions actionable unless they were couched in figurative or hyperbolic language (id., at 254, 566 N.Y.S.2d 906, 567 N.E.2d 1270). Instead, we held that, in distinguishing between actionable factual assertions and nonactionable opinion, the courts must consider the content of the communication as a whole, as well as its tone and apparent purpose. Rather than sifting through a...