Com. v. Armao

• Decision Date: 20 January 1972
• Parties: COMMONWEALTH of Pennsylvania v. Eugene ARMAO and Arnold Orsatti, Appellants.
• Court: Pennsylvania Supreme Court

Page 626

286 A.2d 626

446 Pa. 325

COMMONWEALTH of Pennsylvania v. Eugene ARMAO and Arnold Orsatti, Appellants.

Supreme Court of Pennsylvania.

Jan. 20, 1972.

Rehearing Denied Feb. 14, 1972.

A. A. Guarino, Philadelphia, for appellant, Arnold Orsatti.

David F. Maxwell, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty., David Richman, Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Motions Div., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

Before JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

We must here decide whether the Pennsylvania statute pertaining to criminal libel Act of June 24, 1939, P.L. 872, § 412, 18 P.S. § 4412, ¹ and the Act of April 11, 1901, P.L. 74, § 1, 19 P.S. § 801, ² as modified by Article I, Section 7 of the Pennsylvania Constitution, P.S., ³ is of any further force or effect in light of a series of recent decisions by the United States Supreme Court concerning libel and the First Amendment. ⁴ Upon review we find that neither the statutes nor the last sentence of Article I, Section 7 comport with our basic federal constitutional guarantees concerning freedom of speech and freedom of the press.

Little dispute exists as to the relevant factual background. Appellant Arnold R. Orsatti owned and published a weekly newspaper, Il Popolo Italiano, on which appellant Eugene V. Armao served as the Managing Editor. According to its signature, the paper is 'Circulated From Coast-To-Coast And Throughout Italy With Major Bureaus in Philadelphia and Rome' and is 'The Largest Weekly Newspaper in both English and Italian in America.'

On April 10, 1963, an article appeared on the front page of the paper, authored by Armao and headlined: 'Liquor Trade Tabloid 'Observer' Linked to Operation of Notorious S.A. Club'. The pertinent portion of the article containing the alleged libelous matter reads:

'The name James Buchanan, Associate Editor of the liquor trade tabloid 'Observer' (which wields considerable influence with members of the liquor industry and the Pennsylvania State Liquor Control Board) also appears as the President and Director of the notorious S.A. Club (Sports Alliance) at 212 South 13th Street, while Mr. James Buchanan is also listed as a director of the CR Club (Club Revel, Incorporated) at 810--12 South Darien Street. The S.A. Club has been well-known as a hangout for sex deviates. It is housed in a building owned by COVE, Inc., with relatives of Frank Palumbo on the Board.'

Appellants were subsequently indicted and charged with several counts of criminal libel in violation of the Act of June 24, 1939, supra. Trial was held before a court sitting without a jury, and on August 28, 1964, appellants were adjudged guilty solely on Bill No. 152 concerning the Il Popolo Italiano article. Post trial motions were made on their behalf, and while the motion in arrest of judgment was denied, the motion for a new trial was granted on June 23, 1965, because of possible prejudice to appellants due to the consolidation of the numerous libel counts, on all but one of which they had been found not guilty.

After a motion to quash the indictment was denied, appellants were retried on Bill No. 152 on June 18, 1968 before a court and a jury, and again they were adjudged guilty. Post trial motions were denied by the court en banc on January 23, 1969, and on July 3, 1969, appellant Orsatti was sentenced to fifteen days in prison and appellant Armao received a $400 fine. The Superior Court affirmed per curiam without opinion on March 20, 1970, ⁵ and we granted allocatur.

The Commonwealth admits that read alone, the criminal libel statute would be difficult to construe constitutionally. ⁶ However, it is urged that an appropriate preserving construction can be accomplished by interpreting the statute in conjunction with the last sentence of Article I, Section 7 of the Pennsylvania Constitution and the Act of April 11, 1901, both of which have been set forth in full in the margin. Read together, the constitutional and statutory provisions insulate one who makes a publication in newspapers or otherwise concerning 'the official conduct of officers or men in public capacity', ^6a 'candidates for public office', ^6b or 'any other matter proper for public investigation or information' ^6c from criminal sanctions if the publication was not maliciously or negligently uttered. Truth may be given in evidence, but it is not an absolute defense; as long as the defamatory matter tends, as the statute requires, '. . . to blacken the memory of one who is dead or the reputation of one who is alive, thereby exposing him or her to public hatred, contempt or ridicule', ^6d an offense under the statute has been established. ⁷ Such a statutory and state constitutional scheme does not satisfy the demands of the First Amendment.

Beginning in 1964, the United States Supreme Court decided a series of cases defining the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and freedom of the press. In the seminal case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), it was held that in a civil action by a public official against a newspaper, First Amendment guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was published with "actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' Id. at 279--280, 84 S.Ct. at 726.

The New York Times privilege was subsequently extended to defamatory false statements concerning the conduct of 'public figures', Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and to nondefamatory false statements about persons who are not public figures but who were involuntarily in the public eye. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). More recently in June, 1971 the knowing or reckless falsity standard established by New York Times was applied to a state civil libel action brought, not by a 'public figure', but by a private individual for an asserted defamation published '. . . about the individual's involvement in an event of public or general interest.' Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 31--32, 91 S.Ct. 1811, 1814, 29 L.Ed.2d 296 (1971) (footnote omitted).

In the plurality opinion in Rosenbloom it was emphasized that First Amendment protections were not confined to issues of government:

'. . . the constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government. ' (T)he Founders . . . felt that a free press would advance 'truth, science, morality, and arts in general' as well as responsible government.' Id. at 147 (Curtis Publishing Co. v. Butts, 388 U.S. at 147, 87 S.Ct., at 1987) (opinion of Harlan, J.) Comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of public interest. In Time, Inc. v. Hill, Supra, we had 'no doubt that the . . . opening of a new play linked to an actual incident, is a matter of public interest,' 385 U.S. at 388 (87 S.Ct. at 542), issue. Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) a companion case to Butts, established that the public had a similar interest in the events and personalities involved in federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University of Mississippi. Thus, these cases underscore the vitality, as well as the scope, of the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.' New York Times Co. v. Sullivan, 376 U.S. at 270--271 (84 S.Ct. at 721) (emphasis added).

'If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety.'

Id. at 42--43, 91 S.Ct. at 1819 (footnote omitted) (Mr. Justice Brennan, joined by the Chief Justice and Mr. Justice Blackmun). ⁸

While the Commonwealth admits that criminal libel is a seldom prosecuted offense in this Commonwealth, and there is a paucity of decisions interpreting the statute here in question, we are not unaided in our application of the above First Amendment principles to Pennsylvania's criminal libel provisions. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the Court held that a Louisiana criminal libel statute incorporated constitutionally invalid standards in the context of criticism of public officials in that it directed punishment for true statements made with malice. The statute was also infirm because it attached adverse consequences to false statements against public officials if made with ill will without regard to whether they were made with knowledge of their falsity or in reckless disregard of whether they were true or false. Because the Commonwealth presses arguments concerning the social utility of a broad criminal libel statute for the prevention of disruption of the public order, we deem the following excerpts from Garrison to be relevant.

'. . . (W)e see no merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws, and therefore should not be subject to the same limitations. At common law, truth was no defense to criminal libel. Although the victim of a true but defamatory publication might not have been unjustly damaged in reputation by the libel, the speaker was...