Cepeda v. Cowles Magazines and Broadcasting, Inc.

• Citation: 392 F.2d 417
• Decision Date: 02 April 1968
• Docket Number: No. 21560.,21560.
• Parties: Orlando CEPEDA, Appellant, v. COWLES MAGAZINES AND BROADCASTING, INC., a corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

392 F.2d 417 (1968)

Orlando CEPEDA, Appellant, v. COWLES MAGAZINES AND BROADCASTING, INC., a corporation, Appellee.

No. 21560.

United States Court of Appeals Ninth Circuit.

April 2, 1968.

Marvin E. Lewis (argued), George Olshausen, of Lewis & Stein, San Francisco, Cal., for appellant.

Charles W. Kenady (argued), Richard L. Noble of Cooper, White & Cooper, San Francisco, Cal., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and CHAMBERS and JERTBERG, Circuit Judges.

MADDEN, Judge:

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the Supreme Court in 1964 made a wide breach in what had previously been the law of libel. Twelve years earlier, in Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919, Justice Frankfurter had said, for the Court, "Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary either for us or for the State courts to consider the issues behind the phrase `clear and present danger.' Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class."

In New York Times, persons who libelled public officials were granted a far-reaching immunity from civil actions. Three of the justices would have made that immunity complete and unconditional. In Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125, the Court applied the same immunity to criminal prosecutions for libel.

In 1964 this court in Cepeda v. Cowles Magazine etc., 9 Cir., 328 F.2d 869, cert. den. 379 U.S. 844, 85 S.Ct. 51, 13 L.Ed. 2d 50, held that the complaint stated an enforceable claim for libel on the suit of a famous baseball player against a national magazine.

In Curtis Publishing Company v. Butts and Associated Press v. Walker, decided together, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, the Court, in 1967, faced the question whether the New York Times doctrine granting broad immunity to those sued for having libelled public officials applied, in its full breadth, to persons sued for the libel of "public figures" who are not public officials. "Public figures" are those persons who, though not public officials, are "involved in issues in which the public has a justified and important interest." Such figures are, of course, numerous and include artists, athletes, business people, dilettantes, anyone who is famous or infamous because of who he is or what he has done. Orlando Cepeda, the principal character in the instant suit, was and is a "public figure." His fame as an extraordinary baseball player is recited in our former opinion, cited above.

In Butts' case, cited above, the Curtis Company, in its magazine the Saturday Evening Post, had charged Butts, a college football coach, with having disclosed the secret plays of his team to the coach of another team against which Butts' team was to play soon thereafter. In Butts' suit against the publisher, he obtained a large judgment. The case was reviewed in the Supreme Court. There was no opinion in which a majority of the Justices were willing to join. Mr. Justice Harlan, speaking for four justices, said that the constitutional protection of speech and press required that the activities of "public figures" "cannot be left entirely to state libel laws unlimited by any overriding constitutional safeguard," but that "the rigorous federal requirements of New York Times are not the only appropriate accommodation of the conflicting interests at stake" and must not be given "an unintended inexorability at the threshold of this new constitutional development." Justice Harlan then said, for his group of four justices:

We consider and would hold that a "public figure" who is not a public official may also¹ recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.

In Butts, Chief Justice Warren concurred in affirming the judgment for Butts. But he expressly and emphatically repudiated any distinction between public officials and "public figures," and would have applied to both the strict standards of New York Times, that is, that there can be no recovery except upon proof of actual malice, which could include "wanton or reckless indifference or culpable negligence with regard to the rights of others," as well as "ill will, spite, hatred and an intent to injure one." Although the trial court, in the trial which had taken place before the New York Times decision came down, had not instructed the jury as New York Times would have required, yet, because the evidence of "reckless disregard" etc. was clear, and for other practical reasons, the Chief Justice was not willing to subject the plaintiff to a new trial, and hence he joined in affirming Butts' recovery.

Justices Brennan and White agreed with the Chief Justice that there should not be any distinction between the rights of "public figures" and public officials, but, unlike the Chief Justice, they would have reversed the judgment for Butts so that the case could be retried with proper instructions to the jury.

In Butts, Justices Black and Douglas would have reversed...