Davis v. National Broadcasting Company

• Decision Date: 17 December 1970
• Docket Number: Civ. A. No. 68-1513.
• Citation: 320 F. Supp. 1070
• Parties: Eugene C. DAVIS, Plaintiff v. NATIONAL BROADCASTING COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

320 F. Supp. 1070

Eugene C. DAVIS, Plaintiff v. NATIONAL BROADCASTING COMPANY, Defendant.

Civ. A. No. 68-1513.

United States District Court, E. D. Louisiana, New Orleans Division.

December 17, 1970.

John H. Brooks, New Orleans, La., for plaintiff.

Cicero C. Sessions, Robert E. Winn, New Orleans, La., for defendant.

RUBIN, District Judge:

Old grievances, like old soldiers, do not die. On August 12, 1968, Eugene C. Davis sued National Broadcasting Company for defamation allegedly committed in 1967. The claim smoldered until this Court prodded the ashes. Then it blazed up in motions and counter motions. The issues now before the Court are raised by the defendant's motion for summary judgment.

The legal questions presented by the motion are basically simple: they concern the application of the Louisiana prescriptive statute and the scope of the privilege recognized in N. Y. Times Co. v. Sullivan 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. The case arises from the events set in motion when the District Attorney of Orleans Parish charged Clay Shaw with conspiracy to assassinate President Kennedy.

After Shaw was indicted, Dean Andrews, a New Orleans lawyer, made public statements that the day after President Kennedy was assassinated, one Clay Bertrand telephoned him and asked him to defend the assassin, Lee Harvey Oswald. But no one by the name of Clay Bertrand could be found. There was speculation that this was a pseudonym used by Clay Shaw. These events, like everything else connected with the Shaw trial, attracted great public interest. Newspapers, radio, television and magazines catered to this interest with widespread coverage of every related occurrence.

Mr. Andrews himself by virtue of his picaresque speech and willingness to be interviewed attracted considerable attention. The NBC Huntley-Brinkley report of June 28, 1967 included a statement by Andrews, in a colloquy with NBC reporter Walter Sheridan, that Eugene C. Davis was Clay Bertrand. This statement was of public interest because, if true, it meant that there was a real person who had used the pseudonym, and that this person was not Clay Shaw.

I. PRESCRIPTION

Davis contends Andrews' report was false and defamatory. But he didn't file suit until more than one year after the date of the broadcast, and the prescriptive period for actions for defamation in Louisiana, like that for other torts, is one year. Article 3536, Civil Code.

To avoid being barred, Andrews contends that a newspaper article published in the New Orleans States-Item on August 11, 1967, was a republication of NBC's defamation, and that this republication was a natural and probable consequence of the NBC broadcast on June 28. For good measure, it is alleged that the newspaper story was also a republication of a statment by NBC news reporter Frank McGee and June 19, 1967, that:

Clay or Clem Bertrand does exist. * * * It is a pseudonym used by a homosexual in New Orleans. For his own protection, we will not disclose the real name of the man Andrews knew as Clem Bertrand. * * * He is not Clay Shaw.

The fact that plaintiff was neither named nor otherwise identified, directly or obliquely, in the June 19th broadcast, does not appear to trouble the logic of this argument in any way.

The only words in the newspaper article that are suggested to constitute a republication of NBC's broadcasts are these:

Eugene Davis, a French Quarter Bar owner who Andrews now says is the mysterious Clay Bertrand who called him the day after President Kennedy was shot seeking a defender for Lee Harvey Oswald, appeared at court today. He was called as a witness in the perjury trial. Davis told newsmen his attorney, G. Wray Gill, will file a suit today "against a broadcasting media" because of treatment Davis has received in newspaper reports.

Every publication of a libel is a separate tort for which an independent action may be maintained, Harper and James, The Law of Torts, 5.18, and for which a new prescriptive period runs. Since August 11, 1968 was a Sunday, Davis is not barred by prescription from suing those responsible for the States-Item report. If, however, the defendant's lack of responsibility for the newspaper article is established beyond dispute, summary judgment is proper.

The general rule is that one who publishes a defamatory statement will not be held liable for the repetition of it by others. 53 C.J.S. Libel and Slander § 85. When, however, the second publication is a natural and probable consequence of the first, the initial publisher is responsible for it. Giordano v. Tullier, 139 So.2d 15 (La.App. 4 Cir. 1962); Cormier v. Blake, 198 So.2d 139 (La.App. 3 Cir. 1967). Whether this has occurred is a question of fact. See, Annotation, Defamation—Republication by Others, 96 A.L.R.2d 373. Where there were circumstances, known to the original defamer at the time of his publication that might reasonably lead him to expect a repetition, he is responsible for it. Annotation, supra, § 3. The nature of this factual issue indicates that summary judgment is infrequently appropriate. But here NBC's lack of responsibility for what was published in the newspaper six weeks later is substantiated beyond the possibility of genuine dispute.

There is no contention that NBC exercises control over the States-Item. Further, the article in issue contains only an oblique reference to the defendant. The article primarily recounted events at Dean Andrews perjury trial, an independently newsworthy event. It was no mere repetition of the earlier television interview. Compare Giordano v. Tullier, supra, and Cormier v. Blake, supra. (The newspaper account neither quotes from nor purports to be derived from either NBC broadcast.) In essence the plaintiff has shown only that two independent media reported the newsworthy remarks of a private individual. The mere coincidence of news reporting by independent news services does not make one medium legally responsible for the publications of the other.

Even if prescription were the sole basis for the defendant's summary judgment motion, the motion should be granted. However, NBC also asserts a more fundamental defense under the First Amendment, and, because it likewise has merit, it will stand as the primary basis for granting the motion.

II. FIRST AMENDMENT

In the last six years, the New York Times privilege has become the cornerstone for libel defense. In the Fifth Circuit, the publication of information of public interest is immunized from damages for defamation unless there is proof that it was committed with knowledge of its falsity or with serious doubt about its truth.

In two recent cases, this circuit has made clear that the scope of the privilege includes the publication of all material within the public interest. In Bon Air Hotel, Inc. v. Time, 5 Cir. 1970, 426 F.2d 858, the Court re-affirmed the position taken in Time, Inc. v. McLaney, 5 Cir. 1969, 406 F.2d 565 and held that "publications concerning matters of public interest are protected by the first amendment absent proof of actual malice." See, also, Wasserman v. Time, Inc., D.C.Cir. 1970, 424 F.2d 920; Rosenbloom v. Metromedia, Inc., 3 Cir. 1969, 415 F.2d 892; United Medical Laboratories v. C.B.S., 9 Cir. 1968, 404 F.2d 706, cert. den., 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454.

The activities of Davis, unlike those of McLaney and Bon Air, were not of public concern. He was caught in the storm of publicity that resulted from the Shaw trial and from Andrews' statements about him. But the Fifth Circuit opinions militate against use of this distinction and suggest that the NBC broadcast is protected by the Times doctrine. A person may become the subject of public interest within the meaning of that rule, although he does not seek to be one, and indeed attempts to avoid it. Thus, a person called to testify unwillingly before a grand jury, a bystander at an event of public importance, or the family of a public official may well be public figures exposed to public comment that is protected by the privilege.

Hence, as expounded by the...