Bufalino v. Associated Press

• Decision Date: 27 October 1982
• Docket Number: D,No. 55,55
• Citation: 692 F.2d 266
• Parties: 8 Media L. Rep. 2384 Charles J. BUFALINO, Jr., Plaintiff-Appellant, v. The ASSOCIATED PRESS, Defendant-Appellee. ocket 82-7256.
• Court: U.S. Court of Appeals — Second Circuit

Page 266

692 F.2d 266

8 Media L. Rep. 2384

Charles J. BUFALINO, Jr., Plaintiff-Appellant, v. The ASSOCIATED PRESS, Defendant-Appellee.

No. 55, Docket 82-7256.

United States Court of Appeals, Second Circuit.

Argued Sept. 1, 1982.

Decided Oct. 27, 1982.

Thomas A. Rothwell, Washington, D.C. (Randolph J. Seifert, New York City, of counsel), for plaintiff-appellant.

Richard N. Winfield, New York City (Rogers & Wells, Louise Sommers, New York City, of counsel), for defendant-appellee.

Before LUMBARD, CARDAMONE and WINTER, Circuit Judges.

LUMBARD, Circuit Judge:

Charles J. Bufalino, Jr. appeals from a grant of summary judgment to the Associated Press (AP) in his diversity action for defamation against AP. Judge Werker of the Southern District of New York granted AP summary judgment on both of two independent grounds. First, he held that AP's published statements about Bufalino were not actionable under the "fair report privilege" recognized by Pennsylvania law. Second, after finding that Bufalino was a public official and that AP had not acted with malice, he held Bufalino's action barred under the constitutional "malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We reverse the grant of summary judgment on both grounds and remand for further proceedings.

Appellant is a member of the Pennsylvania bar who resides and practices law in West Pittston, Pennsylvania, a community of some 7,000 to 8,000 persons in the Scranton-Wilkes-Barre area of northeastern Pennsylvania. In addition to his private practice, appellant is employed by the Borough of West Pittston in the part-time, appointive position of Borough Solicitor. As Borough Solicitor appellant attends meetings of the Borough Council (the legislative body for West Pittston) and, upon request, advises the Council on legal matters. He is compensated from the Borough budget at approximately $3,500 per year. Appellant claims that two reports prepared by AP (a New York corporation) and published in certain Pennsylvania newspapers in December 1978, defamed him with consequent damage to his personal and professional lives. These reports identified appellant as a person "with alleged mob ties."

Appellant commenced this action with the filing of a complaint on November 30, 1979. AP served its answer on December 24, 1979. Following discovery by both parties, AP moved for summary judgment on June 10, 1980. Judge Werker granted AP's motion in an opinion filed on January 28, 1982.

Judge Werker assumed certain facts to be true in rendering summary judgment for the defendant. While plaintiff disputes some of these facts, we also will assume them to be true for purposes of this appeal so that the correct legal standard may be established prior to trial. At trial plaintiff will be free to put his version of the facts to the trier. We therefore state the facts as follows.

On December 7, 1978 Pennsylvania Governor-elect Richard L. Thornburgh released a list of contributors to his election campaign. Paul Carpenter, then a newsman in the Harrisburg office of AP, reviewed the list that day. Carpenter recognized the name "Bufalino" as a result of previous reporting work in the areas of law enforcement and organized crime. He researched the backgrounds of the individuals whose names he recognized to confirm information about them and to obtain additional information for a news report. He consulted materials released by the Pennsylvania Crime Commission (a public investigatory body without enforcement powers), including its 1970 Report on Organized Crime. He consulted AP files and his own working files. He reviewed newspaper articles which reported that William E. Bufalino, Sr., a Detroit lawyer, was a cousin and criminal associate of Russell Bufalino, a reputed Mafia leader. ¹ He next contacted two other reporters believed by him to be reliable and knowledgeable in the area of organized crime. One reporter told him that appellant and Russell Bufalino were related, and the other told him that he was "pretty sure" they were related.

Carpenter also telephoned personnel at the Pennsylvania Crime Commission to verify his information. Two Commission employees, described by Carpenter as "officials," informed Carpenter that appellant was related to Russell Bufalino. The Commission had previously identified Russell Bufalino as a Mafia leader. A third Commission employee (or "official") told Carpenter that in his private practice appellant represented individuals suspected of having connections with organized crime. Carpenter agreed with the "officials" not to reveal their identity, and he has not done so. At a pre-trial deposition Carpenter stated that the word "officials," as he used it, could refer not only to members of the Commission, but also to various officers and agents of the Commission.

After obtaining this information, Carpenter prepared a story on the campaign fund disclosures for transmission to morning newspapers in Pennsylvania. Robert Dvorchak, in charge of AP's Harrisburg bureau, reviewed the story and asked Carpenter about the sources of his information for each individual named in the story. The story was then transmitted to AP's Philadelphia Bureau on the evening of December 7, 1978.

As reported in the Scranton Times on December 8, 1978, and in the Wilkes-Barre Times-Leader Evening News on December 9, 1978, the story stated:

Harrisburg (AP)--Governor-elect Richard L. Thornburgh, who rose to fame by battling organized crime, accepted political contributions from several individuals with alleged mob ties, according to his campaign records ...

Among the 14,000 contributors listed by Thornburgh were:

.... Charles Bufalino Jr., an attorney who is related to Russell Bufalino, described by the Crime Commission as a Mafia boss. He gave $120.

On December 8, 1978, Dvorchak prepared a follow-up story incorporating the response of Governor-elect Thornburgh's press secretary to the original article. This follow-up story was transmitted by AP's Harrisburg bureau to other AP members on December 8th and 9th. As reported in the Scranton Times on December 9, 1978, and in the Wilkes-Barre Times-Leader Evening News on December 13, 1978, this story stated:

Harrisburg (AP)--Governor-elect Richard L. Thornburgh will return campaign contributions to three individuals who allegedly have ties to organized crime figures....

....

"We are looking into whether Bufalino has documentable links to organized crime, but as of today we have been unable to determine that," ....

.... Bufalino, an attorney, is related to Russell Bufalino, identified by state and federal investigative agencies as a Mafia boss now in prison.

....

But [Thornburgh's press secretary] said Bufalino's mere family ties ... do not warrant returning ... Bufalino's $120 contribution.

Appellant bases his action for defamation upon the two stories quoted above. To establish liability for defamation under Pennsylvania law, the plaintiff must prove both the defamatory character of the defendant's communication and the recipient's understanding of its defamatory meaning. 42 Pa.Cons.Stat.Ann. Sec. 8343(a) (Supp.1981). The Pennsylvania Supreme Court has stated that the court is to determine, in the first instance, whether the communication complained of is capable of a defamatory meaning. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971). If the court concludes that the communication may have a defamatory meaning, the jury is to determine whether it was so understood by the recipient. Our initial inquiry, therefore, is whether AP's statements about appellant are susceptible of a defamatory meaning. The Pennsylvania Supreme Court has adopted the definition of defamation set forth in Sec. 559 of the original Restatement of Torts. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1969). ² We therefore must evaluate AP's statements in light of Sec. 559, which defines a defamatory communication as one that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." We have no doubt that under this test AP's statements about appellant are susceptible of a defamatory meaning. A description of an individual as a person "with alleged mob ties" may well lower the community's estimation of that person and deter others "from associating or dealing with him." It is true that AP's statement of a family relationship between appellant and Russell Bufalino may not in itself be defamatory. A mere imputation of family relationship generally is not actionable. However, Governor-elect Thornburgh's prompt decision to return the campaign contributions of certain persons named in the articles is strong evidence of the meaning most readers would attribute to the phrase "alleged mob ties." We conclude that taken together AP's stories could have a defamatory meaning, and that appellant therefore satisfied his initial burden of proof.

Defamatory communications are not actionable, however, if protected by privilege. Among the privileges recognized by Pennsylvania is a privilege for the "fair and accurate" reporting of official records and proceedings. The scope of this privilege in Pennsylvania is open to debate. Although in several decisions the Pennsylvania Supreme Court adopted as the law of the state the fair report privilege set forth in Sec. 611 of the original Restatement of Torts, see Binder v. Triangle Publications, Inc., 442 Pa. 319, 324, 275 A.2d 53, 56 (1971); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 177, 191 A.2d 662, 667 (1963); Sciandra v. Lynett, 409 Pa. 595, 600, 187 A.2d 586, 589 (1963), no Pennsylvania court has yet considered the significance of the amendments made to Sec. 611 in the Restatement (Second) of Torts. We agree, however, with Judge Werker that the fair report privilege contained in Sec. 611 of the Second Restatement...