Faulk v. Aware, Inc.

• Decision Date: 21 November 1963
• Citation: 244 N.Y.S.2d 259,19 A.D.2d 464
• Parties: John Henry FAULK, Plaintiff-Respondent, v. AWARE, INC. and Vincent W. Hartnett, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 259

244 N.Y.S.2d 259

19 A.D.2d 464

John Henry FAULK, Plaintiff-Respondent, v. AWARE, INC. and Vincent W. Hartnett, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Nov. 21, 1963.

Charles E. Henry, New York City, of counsel (Edward Cherney and Alexander C. Dick, New York City, with him on the brief, Meleney, Dick & Engel, New York City, attys.) for appellants.

Louis Nizer, New York City, of counsel (Paul Martinson and George Berger, New York City, with him on the brief, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, attys.) for respondent.

Before BREITEL, J. P., and RABIN, McNALLY, EAGER and BERGAN, JJ.

RABIN, Justice.

This action is in libel. At the time of the alleged libel the plaintiff was a radio and television performer. He had his own show known as the 'John Henry Faulk Show', a daily feature of Station WCBS. In addition he made guest appearances on other radio and television programs. There is no question but that he was widely known by the public and in his profession.

The defendant, Aware, Inc., is a 'membership corporation whose purpose is to combat Communism in the entertainment and communication industries'. ¹ The defendant, Hartnett, was a founder and director of Aware and his 'principal source of income' was derived from 'serving as a consultant to various sponsors and other institutions connected with the broadcasting industry with respect to political backgrounds of radio and television performers.' ¹ The third defendant, Johnson, died during the course of the trial and his estate did not appeal from the judgment.

The plaintiff charges that the defendants conspired to defame him through the issuance of libelous articles with the express malicious intent of destroying his career in television and radio and that through the issuance of such libelous articles they succeeded in so doing. Chief among these articles was a special bulletin issued and published by the defendant, Aware, and written by the defendant, Hartnett. This bulletin was known as News Supplement to Membership Bulletin 16. It is charged by the plaintiff that it was distributed not only to the membership of Aware, Inc., but to its entire mailing list of about 2,000 names. The mailing was designed to and did reach every source or possible source of plaintiff's employment--radio and television stations, advertising agencies, sponsors of programs and advertisers, newspapers and columnists, and particularly the station employing the plaintiff and the sponsors supporting his program.

Plaintiff charged that this course of conduct was embarked upon by the defendants to remove him as an officer of the American Federation of Television and Radio Artists in retaliation for his campaign against the defendants' activities in the entertainment field. This campaign, according to the plaintiff, was directed against 'certain nefarious and racketeering practices of the defendants, involving the use of intimidation and terror in order to procure the blacklisting of radio and television artists by the networks, sponsors, producers and advertising agencies and * * * the extortion of monies in consideration for the 'clearance' and * * * 'screening' of radio and television artists charged * * * with subversive * * * associations.' ²

The plaintiff was extremely successful in his suit, the jury bringing in a verdict of $1,000,000.00 as compensatory damages as against all three defendants, and $1,250,000.00 as punitive damages against each of the defendants, Aware and Hartnett.

The appellants claim, first, that the plaintiff failed to prove the publications complained of were libelous and urge, therefore, that the complaint should have been dismissed. The sufficiency of the complaint was tested in Special Term. Special Term held that the Aware bulletin 'may reasonably be understood as charging that 'plaintiff was either a communist or that he co-operated in communistic activities and associated with communist figures.' Mencher v. Chesley, supra, 297 N.Y. at page 99, 75 N.E.2d at page 259. * * * In the court's opinion, the contents of the article, assuming they are untrue, as alleged in the complaint, defame and libel plaintiff.' (3 Misc.2d 833, at 836, 155 N.Y.S.2d 726, at 730).

We unanimously affirmed (3 A.D.2d 703, 160 N.Y.S.2d 621). (See also 9 Misc.2d 815, 169 N.Y.S.2d 363). It is implicit in these decisions that the documents alleged to have been livelous may be held to be libelous and that if the plaintiff proves what is alleged in the complaint he makes out a prima facie case--not to be dismissed.

There was no denial that Aware issued and published the offending document, or that Hartnett was the author of that paper. The defendant interposed affirmative defenses--complete and partial. The complete defenses were truth and fair comment; the partial defenses were truth, reply and reasonable reliance.

With the exception of the partial defense of reasonable reliance, which was submitted to the jury, all of the defenses were dismissed at the close of the case for failure of proof. It is to be noted that the 'defendants concede that, with one exception, that of partial truth, the Court correctly dismissed these defenses.' ³ This is a telling admission.

The proof in support of the plaintiff's case was overwhelming. He conclusively established that the defendants planned to destroy his professional career through the use of the libelous publications directed to the places where they would do him the most harm. He proved that they succeeded in doing so. The proof established that the libelous statements were not made recklessly but rather that they were made deliberately. The acts of the defendants were proven to be as malicious as they were vicious. The defendants were not content merely with publishing the libelous statements complained of knowing that injury to the plaintiff must follow such publication. They pursued the plaintiff with the libel making sure that its poison would be injected directly into the wellsprings of his professional and economic existence. They did so with deadly effect. He was professionally destroyed, his engagements were cancelled and he could not gain employment in his field despite every effort on his part.

And what of the defenses? There was absolutely no support for them--to a point were the defendants admit that, except for the partial defense of truth and the partial defense of reasonable reliance, the court properly dismissed them. The partial defense of reasonable reliance was properly rejected by the jury, and the court, we believe, acted rightly in dismissing the partial defense of truth. There was nothing to support it nor did the evidence offered by the defendants rise to the level of 'tending but failing to prove the truth' (Crane v. New York World Telegram Corporation, 308 N.Y. 470, at 476, 126 N.E.2d 753 at 757, 52 A.L.R.2d 1169.) So we have, as found by the jury and amply supported by the evidence, a vicious libel, deliberately and maliciously planned and executed with devastating effect upon the plaintiff, all without a semblance of justification.

The appellants urge further that the judgment be reversed because, among other reasons, 'the testimony regarding 'blacklisting' was so prejudicial as to amount to reversible error.' Blacklisting, as its name implies, was the practice prevalent in the entertainment industry of listing those entertainers who were accused of being communists, or of having communistic affiliations. Such listing invariably resulted in the cancellation of the engagements of one so listed and generally rendered him unemployable. That the defendants used the libelous material to effect the blacklisting of plaintiff was made quite clear.

The plaintiff charged that his blacklisting flowed from the publication of the libelous articles, and that because of it he lost his employment and became unemployable. That charge, though now conceded, was denied by the defendants in their answer. It accordingly became necessary for the plaintiff to prove it to establish his damage.

Nor is that the only reason for justifying the admission of testimony descriptive of blacklisting. Among the reasons given by the trial court for its admission was that '[p]laintiff is entitled to present such proof in connection with his claim for punitive damages against defendants as indicating their recklessness and wanton indifference to the rights of others, which in law is the equivalent of actual malice.'

Strange as it may seem the appellants take the position that the blacklisting testimony should not have been received because, as they say, there 'was no serious dispute at any time in this action that the appellants indulged in these practices, whether called 'blacklisting', 'screening', 'clearing', or any similar word, and that this was a general practice in the broadcasting industry.' ⁴ Of course, we assume that the defendants do not mean to convey the impression that it was the general practice to blacklist through the use of libel. But that bare admission does not adequately inform the jury as to the nature of the blacklisting practice in the industry, or what effect it had on the ability of the plaintiff to obtain employment after he had been blacklisted as a result of the libelous statements.

Illustrative of that practice there was received testimony of several witnesses who had been blacklisted. The appellants say that such evidence should not have been admitted. The plaintiff's response is that such testimony was admissible in support of the plaintiff's claim for punitive damages. Plaintiff points to the case of Walker v. Sheldon (10 N.Y.2d 401, 404, 223 N.Y.S.2d 488, 490, 179 N.E.2d 497, 499) where the Court of Appeals said: 'It was the conclusion of the Appellate Division that, if the plaintiff is able to prove (what in effect she alleges) that the defendants were engaged in carrying on 'a virtually larcenous scheme to trap generally...