Christopher v. American News Co., 9603.

• Decision Date: 15 December 1948
• Docket Number: No. 9603.,9603.
• Citation: 171 F.2d 275
• Parties: CHRISTOPHER v. AMERICAN NEWS CO.
• Court: U.S. Court of Appeals — Seventh Circuit

171 F.2d 275 (1948)

CHRISTOPHER v. AMERICAN NEWS CO.

No. 9603.

United States Court of Appeals Seventh Circuit.

December 15, 1948.

Irving Breakstone, of Chicago, Ill., for appellant.

Arthur J. Goldberg, Carl Devoe and Abraham W. Brussell, all of Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, MINTON, Circuit Judge, and LINDLEY, District Judge.

MINTON, Circuit Judge.

The plaintiff, a citizen of Indiana, brought this action for libel against the defendants, The Nation Associates, Inc., a New York corporation; The American News Company, a New York corporation licensed and doing business in Illinois under its own name and as the Western News Co. Div. of The American News Co.; and Paul L. Klein, a citizen of New York. The complaint alleges that the plaintiff was for many years engaged in the printing business in Gary, Indiana; a member of the Common Council and Police Commissioner of that city; for many years, president of the Serbian National Federation, a fraternal society incorporated under the laws of Pennsylvania, having its principal office in Pittsburgh, Pennsylvania, and subordinate lodges and members throughout the United States; and, at the date of the libelous publication herein, was a candidate for Mayor of Gary, Indiana. The complaint further alleges that the defendants maliciously conspired to and did compose and circulate in the cities of Gary and Chicago and in the states of Indiana and Illinois, as well as other states of the United States, an article published in The Nation, a "weekly magazine," which article falsely impugned the plaintiff's patriotism by ascribing to him belief in and advocacy of Nazi or pro-Nazi doctrines, and further defamed him by statements susceptible of meaning that the plaintiff had violated the Anti-Hate Law¹ and the truancy laws of the State of Indiana. The complaint sets out the libelous matter in issue, the innuendoes deduced therefrom, the Anti-Hate Law of Indiana, and concludes with a prayer for compensatory and punitive damages in the sum of $500,000. No special damages are alleged or claimed.

On motion of The American News Company, the only defendant upon whom service was obtained, the court dismissed the complaint, and the plaintiff, electing not to amend, has brought this appeal. Since the motion to dismiss admits that the article was published, that its contents were false, and that the publication was malicious, Adair v. Timblin, 186 Ill.App. 133, 137, the sole question before us is whether the admitted allegations in the complaint state a claim upon which relief may be granted.

The following reasons were offered by the defendant's motion to dismiss and by the District Court, in support of the position that the complaint does not state a claim for relief.

First: The language in controversy is not reasonably susceptible of the libelous interpretation sought to be given thereto by the innuendoes.

Second: The law of Indiana, the state of the plaintiff's domicile, governs. Since the Retraction Statute of Indiana² was not complied with, and since The Nation is a newspaper and comes under the scope of this statute, the plaintiff is barred from bringing this action.

Third: The plaintiff failed to allege that the defendant, American News Company, a distributor, knew or should have known that The Nation was likely to or did make the libelous publication.

Fourth: The article was privileged fair comment concerning a candidate for public office and was not actionable.

Fifth: The action was local and could not be brought anywhere except in Indiana, the domiciliary state of the plaintiff.

The last three reasons, in inverse order, will be disposed of briefly. Authority is uniform on the proposition that libel is not a local but a transitory action. Sweeney v. Schenectady Union Publishing Co., 2 Cir., 122 F.2d 288, affirmed 316 U.S. 642, 62 S.Ct. 1031, 86 L.Ed. 1727; O'Reilly v. Curtis Publishing Co., D.C., 31 F.Supp. 364. The plaintiff's fame or anonymity in the state of the forum is material only on the determination of damages or at best as an aid in ascertaining the effect of libelous words on the mind of an ordinary reader. Sweeney v. Caller-Times Pub. Co., D.C., 41 F.Supp. 163. Fair comment and privilege must be pleaded in answer as affirmative defenses and cannot be set up in a motion to dismiss. See our recent decision in Spanel v. Pegler, 7 Cir., 160 F.2d 619, 623, 171 A.L.R. 699, and cases there cited.

Finally, the complaint need not include an allegation that the defendant distributor knew or should have known that The Nation had printed the offending article. The complaint charges that all defendants wrote and published it and further that the conduct of the distributor was in accord with a conspiracy entered into by all of the defendants whereby the acts of one conspirator are the acts of all. While this is a far more serious charge than the allegation which the defendant asserts that the plaintiff should have made, and considerably more difficult to prove, it would seem obvious that the plaintiff should not be prevented from going to trial simply because he has assumed a heavy burden of proof.

The first and second reasons enumerated above require more extensive treatment. We turn to them in order.

First: The pertinent excerpts of the article complained of read as follows:

"The Gary School Strike.

By Paul L. Klein,

Gary, Indiana.

* * * * * *

"Perhaps U.S. Steel fosters dissension between Negro and white workers in order to weaken the union; perhaps it would like the community to be occupied with racial conflicts while it quietly presses for its requested $10,000,000 local tax cut, which will raise the average family's burden $30 a year. Even if not guilty on these counts, U.S. Steel certainly created and has maintained a separateness and tension which three weeks ago flared once more into anti-Negro demonstrations. Race hatred has again hit the children of Gary. And make no mistake: it was the carefully nurtured property-devaluation bogey that scared up the Emerson School strike here.

"White students in Gary have always attended the school in their home district; Negro pupils have been `allowed' to exercise an `option' to attend some other school. Last year the school board announced that, starting this fall, the `option' would be revoked for grammar-school students, and, later, for students of all ages.

"As a result of the new policy, Emerson — with 1,800 students, the least crowded of all Gary's schools — was assigned thirty-eight colored children in grades up to the sixth. On opening day the high-school students struck. `No niggers for us!' they shouted. Immediately the school board declared it would stick to its ruling. For the first few days, while a few Negro-hating parents were injecting the children's ring-leaders with fools' courage, the school authorities watched and waited; they took no action

(Paul L. Klein is a law student at Columbia. He has previously written for The Nation on election issues.)

but threatened legal steps against the delinquents' parents under Indiana's new antihate law and under laws against contributing to truancy. During this period public opinion was being mustered against the race bigots. Urged on by the League of Women Voters and the C.I.O. Steelworkers, most of the civic organizations supported the board. (I was told that the spokesman for U.S. Steel in the Chamber of Commerce tried last year to prevent the chamber from giving its approval.)

"It is heartening to note that although individual members of an organization are sometimes opposed to democratic principles, the organizations themselves, under public scrutiny, can be forced to come out for right and justice.

* * * * * *

"The strike reached its peak on Friday of the first week. Over the week-end an arrest was made under the state law, subpoenas were issued to the parents of strikers, and by Monday students were beginning to return. During this time the board continued to issue subpoenas. `The policy sticks,' it announced, `and you are violating the law by keeping your children out.' The parents' strike committee hired a lawyer; he, too, told them they must send their children back. By the following Monday — two weeks after school's opening — attendance was again normal.

"What factor was most immediately responsible for the strike? It is interesting to note that at no time was there any violence against colored pupils; this reinforces the conviction of most observers that fear of property devaluation, not of classroom association, motivated the strikers and their parents. Furthermore, attempts to get other schools to walk out failed.

"Somewhere at the root of the disturbance is a man called Louis C. Christopher, now running for mayor. Christopher has a long and unsavory record; he is a leader of the Serbian National Federation, which is allied with the Slovak League, known during the war for its pro-Nazi stand. He is alleged to have instigated the similar Froebel School strike here two years ago. The anti-Negro parents' committee, which has voted to perpetuate itself, is supporting Christopher's campaign for the mayoralty. (Italics ours.)

"But attendance at committee meetings has dwindled, and funds are running low. Christopher seems to have no chance to be elected; nor is it likely that his intrusion into the race, as an independent, will throw the election to the steel industry's candidate. Counteraction has begun: the Steelworkers are about to launch a racial-education program, and other groups have similar plans. Moreover, in a few years the high schools, and later the electorate itself, will be composed of young men and women who are now children in the elementary grades and receiving a democratic, non-segregated education."

A charge that one is a Nazi or a pro-Nazi is actionable. O'Donnell v. Philadelphia Record Co., 356 Pa. 307, 51 A.2d 775. A charge of a criminal offense involving moral turpitude is also actionable, ...