Buckley v. New York Post Corporation

• Decision Date: 10 January 1967
• Docket Number: Docket 30757.,No. 210,210
• Citation: 373 F.2d 175
• Parties: William F. BUCKLEY, Jr., Plaintiff-Appellant, v. NEW YORK POST CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

373 F.2d 175 (1967)

William F. BUCKLEY, Jr., Plaintiff-Appellant, v. NEW YORK POST CORPORATION, Defendant-Appellee.

No. 210, Docket 30757.

United States Court of Appeals Second Circuit.

Argued November 30, 1966.

Decided January 10, 1967.

C. Dickerman Williams, New York City (Baker, Nelson, Williams & Mitchell, New York City) (David S. Maclay, Marsh, Day & Calhoun, Bridgeport, Conn.), for plaintiff-appellant.

Jacob D. Zeldes, Bridgeport, Conn. (Arnold J. Bai, Elaine S. Amendola, Bridgeport, Conn.), for defendant-appellee.

Before MEDINA, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge:

Buckley, a resident of Connecticut, brought this action in the Superior Court of Fairfield County in that state, against New York Post Corporation, a Delaware corporation having its principal place of business in New York City, to recover damages for libel. He claimed that two editorials appearing in April 1965 had been published maliciously and with reckless disregard of the truth. The Post, having removed the action to the United States District Court, sought dismissal on the ground that it was not subject to service of process in Connecticut.

Buckley asserted that two sections of Connecticut's "long-arm" statute adopted in 1959 and effective January 1, 1961, G.S. § 33-411(c) (3) and (4), gave the court jurisdiction. The sections subject a foreign corporation to suit in the state "on any cause of action arising as follows:

(3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance."

Answers to interrogatories disclosed that for a two year period ending May 1, 1965, an average of 1707 copies of the daily and 2100 copies of the weekend edition of the Post were distributed to persons in Connecticut by wholesale agents, mail or bus shipment consigned to dealers, and mail subscription;¹ that the Post received news dispatches relating to Connecticut from the Associated Press in New York City and from five Connecticut contributors; that it carried advertisements for not more than 15 Connecticut resorts once or twice weekly during the spring and summer, for four Connecticut restaurants once a week, and for three New York stores which indicated a Connecticut branch in some of their advertising. The figures as to papers distributed to persons and corporations in Connecticut did not include copies sold in New York City with the expectation they would be taken into Connecticut by residents returning home from work; the number of these was stated to be "indeterminable." The district judge held that the case was within subdivision (3) but not within subdivision (4); he dismissed the complaint on the ground that application of the long-arm statute to the Post under the circumstances would violate the due process clause of the Fourteenth Amendment.

I.

If decision depended solely on subdivision (3), we would uphold the dismissal on the basis that the statute did not apply and would not arrive at the issue of constitutionality. Apparently recognizing that the main thrust of subdivision (3) was to reach products liability actions, the judge thought it would be "too strained an interpretation" to distinguish between one case where "a nail is concealed in an unopened can of peas" and another where "defamatory words lie dormant in an unread newspaper" since in either event no "cause of action arises until some further act occurs." But the similarity between the two cases in that respect does not mean that they are similar in every other; the question remains whether the legislature meant subdivision (3) to deal with injuries to reputation at all.

Such an interpretation would hardly occur on a first reading. Connecticut's legislature appears rather to have been concerned with providing a more decisive answer for what has proved to be the vexing problem how far the "tortious conduct in this state" language of subdivision (4) and its variants in other long-arm statutes cover the out-of-state manufacturer or distributor of a defective product who had not himself been in the state but had shipped the product to someone who was or to someone who later sent or brought it there.² While the dominance of this purpose need not exclude others, "used or consumed" is scarcely a natural way to describe reading a newspaper. Moreover, although the statutory words can be stretched that far, they surely could not extend to a radio or television broadcast, and no reason appears why the legislature would have wished to bear more heavily on publishers of newspapers or magazines which enter Connecticut by land than on broadcasters who penetrate Connecticut's air. The contrary argument is that in Putnam v. Triangle Publications, Inc., 245 N.C. 432, 442, 96 S.E.2d 445, 453 (1957), the court thought "it would seem that the language" of a similarly worded statute, on which Connecticut's may well have been modeled, was "broad and comprehensive enough" to sustain the service of process in an action for libel. But the North Carolina court did not discuss the purpose of the statute; the authorities it cited merely stressed the broad meaning of "goods"; and it had concluded that the statute could not be constitutionally applied to the defendant in any event. Furthermore, Putnam's value as an aid in determining the intention of the Connecticut legislature is small since the meager legislative history gives no indication that it was aware of the North Carolina ruling.

II.

On the other hand, it would seem hard to deny that distributing two thousand copies of a libel about a resident in Connecticut is "tortious conduct in this state," under any ordinary meaning of those words in subdivision (4). See St. Clair v. Righter, 250 F.Supp. 148, 150 (W.D.Va.1966). Indeed, the original Restatement of Conflict of Laws, applying Professor Beale's "last event" approach, stated that "Where harm is done to the reputation of a person, the place of wrong is where the defamatory statement is communicated" and gave as an example that when A, broadcasting in state X, slanders B who is well and favorably known in state Y and the broadcast is heard there, "The place of wrong is Y." § 377 at 457 (1934). While the "last event" approach has been discredited as a basis for choice of law, see Ehrenzweig, The Place of Acting in Intentional Multistate Torts, 36 Minn.L.Rev. 1, 13-16 (1951), and current plans for the second Conflicts Restatement call for modification, see Restatement (Second), Conflict of Laws pp. 1-2 and §§ 379d, 379e (Tent. Draft No. 9, 1964), it does not follow that the influence of the concept on the thinking of legislators has been eradicated to such a point that they would not consider the distribution of a libel of a resident to constitute tortious conduct in the state. Even if an out-of-state manufacturer who shipped a mislabeled and defective tool to an in-state dealer who sold it there did not "commit a tortious act within the state" within the New York statute, CPLR § 302(a) (2), as held in Singer v. Walker, supra note 2, damage to a person's reputation caused by sending a libel into the state where he lives could still be considered as arising from "tortious conduct" in that state; it could well be said that the publisher directly inflicts damage on the intangible reputation just as the frequently hypothesized but rarely encountered gunman firing across a state line does on the body, whereas sending the defective tool to the dealer merely created the condition whence damage would later arise.³ Certainly the New York legislature seems to have thought that the out-of-state publisher would have come under the general "tortious act" language of its long-arm statute for it was at pains to exclude from coverage "a cause of action for defamation of character arising from the act".

The defendant contends that, however all this might stand as a matter of the normal interpretation of language, the "single publication" rule with respect to newspapers and other aggregate communications, Restatement (Second), Torts § 577A (Tent.Draft No. 11, 1965), requires a different conclusion, as was held with respect to the Illinois long-arm statute in Insull v. New York World-Telegram Corp., 172 F.Supp. 615, 632-634 (N.D.Ill.), aff'd, 273 F.2d 166 (7 Cir. 1959), cert. denied, 362 U.S. 942, 80 S.Ct. 807, 4 L.Ed.2d 770 (1960).⁴ Although we join the late Judge Hincks in predicting that the courts of Connecticut will ultimately adopt the single-publication rule, Dale System v. Time, Inc., 116 F.Supp. 527, 529 (D.Conn.1953); Fouts v. Fawcett Publications, Inc., 116 F.Supp. 535, 536 (D.Conn.1953), we do not accept the conclusion defendant draws from this.

To hold that the single-publication rule exempts a publisher of a newspaper or magazine or a broadcaster from a long-arm statute that would otherwise have been applicable would be quite as artificial as the "last event" approach of the first Conflicts Restatement and the separate publication concept of Duke of Brunswick v. Harmer, 14 Q.B. 185, 117 Eng.Rep. 75 (1849), which the new rule was intended to overcome. Elliptical statements that a libel by newspaper is "complete" upon publication, though often accurate enough in their particular context, should not obscure that the purpose of the single publication rule is not to deprive a plaintiff defamed in another state of a privilege to sue there which the legislature had granted generally to persons injured by wrongful conduct within its borders, but rather to protect the defendant — and the courts — from a multiplicity of suits, an...