Freeman v. Johnston

Decision Date30 June 1994
Citation614 N.Y.S.2d 377,84 N.Y.2d 52,637 N.E.2d 268
Parties, 637 N.E.2d 268, 22 Media L. Rep. 1929 Brian M. FREEMAN, Appellant, v. Moira JOHNSTON, Respondent, et al., Defendant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

SMITH, Judge.

In this action for defamation, the question is whether summary judgment was correctly granted to defendant dismissing the complaint. We agree with the Appellate Division that the evidence was insufficient to allow a rational fact finder to find actual malice by clear and convincing evidence.

This controversy arises from the publication of defendant Moira Johnston's book, "Takeover--The New Wall Street Warriors The Men, The Money, The Impact," chronicling recent contests in the world of corporate takeovers. Plaintiff Brian Freeman, who brought this action for defamation, 1 was a financial advisor to the International Association of Machinists (IAM), one of two unions 2 which took part in negotiations over the future of Trans World Airlines (TWA). The negotiations involved a battle between Carl Icahn and Frank Lorenzo for control of TWA. In characterizing a critical meeting of the TWA Board of Directors held on August 20, 1985, involving the Icahn-Lorenzo struggle, defendant, in her book, made the following statement concerning plaintiff:

"Brian Freeman, the lawyer who represented the machinists, compounded the threats of strike, warning that being sold into bondage to Lorenzo would provoke night time trashing of airplanes and other sabotage."

Although plaintiff was admittedly present at that meeting, he denied having made the statement, claiming that it was false and defamatory and conveyed that he "threatened, condoned and encouraged the likely commission of acts of physical sabotage and other illegal actions" by his clients.

Also present at the August 20 meeting were Harry Hoglander, an airline pilot, veteran TWA employee and then Chairman of the Master Executive Council of the Airline Pilots Association, and James Freund, Esq., of Skadden, Arps, Slate, Meagher & Flom, who acted as counsel to the TWA board. Hoglander, who was interviewed by Johnston, recalled that the statement accurately portrayed plaintiff's sentiment at the meeting. Plaintiff asserts, however, that Freund's memory of Freeman's statement contradicted that of Hoglander, thus giving rise to an inference Johnston should have drawn that her information needed further verification.

At Supreme Court, defendant moved for summary judgment, alleging that plaintiff failed to make a prima facie showing of defamation. Supreme Court denied the motion insofar as it was addressed to the defamation cause of action, holding that the statement at issue could not be reconciled with witness Freund's version that what Freeman said was "no big deal." Thus, that court found summary judgment as to the defamation cause of action inappropriate. 3

The Appellate Division granted summary judgment dismissing the defamation claim, with one dissent, noting that the statement attributed to Freeman "is a privileged description of the attitudes of the union membership he represented, and not a blanket endorsement of illegal activity by a lawyer, as plaintiff urges" (192 A.D.2d 250, 252, 601 N.Y.S.2d 606). The Appellate Division granted plaintiff's motion for leave to appeal to this Court. We now affirm.

Here, plaintiff claims that the statement in question was published with actual malice and that it is reasonably susceptible to a defamatory meaning. Defendant counters that the Appellate Division properly dismissed plaintiff's claim because no evidence of constitutional malice exists.

A public official may not recover damages for defamation unless the official proves that the offending false statement was made with " 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not" (see, New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686; Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 474, 605 N.Y.S.2d 218, 626 N.E.2d 34). In Curtis Publ. Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094, reh. denied 389 U.S. 889, 88 S.Ct. 11, 19 L.Ed.2d 197, the United States Supreme Court extended this standard to all "public figures" and it has since been consistently applied to such (see, Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 2685, 105 L.Ed.2d 562; Mahoney v. Adirondack Publ. Co., 71 N.Y.2d 31, 39, 523 N.Y.S.2d 480, 517 N.E.2d 1365). 4

In a defamation action, plaintiff has the burden of showing actual malice (see, Mahoney v. Adirondack Publ. Co., 71 N.Y.2d 31, 39, 523 N.Y.S.2d 480, 517 N.E.2d 1365, supra ) including " 'the burden of showing the falsity of factual assertions' " (see, Prozeralik v. Capital Cities Communications, 82 N.Y.2d, at 473, 605 N.Y.S.2d 218, 626 N.E.2d 34, supra, citing Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 245, 566 N.Y.S.2d 906, 567 N.E.2d 1270, cert. denied 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 713). On appeal in these cases, courts have a "constitutional duty to 'exercise independent judgment and determine whether the record establishes actual malice with convincing clarity' " (Harte-Hanks Communications v. Connaughton, 491 U.S., at 659, 109 S.Ct. at 2681, supra, citing Bose Corp. v. Consumers Union of U.S., 466 U.S. 485, 514, 104 S.Ct. 1949, 1967, 80 L.Ed.2d 502; Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 474, 605 N.Y.S.2d 218, 626 N.E.2d 34, supra; Mahoney v. Adirondack Publ. Co., 71 N.Y.2d 31, 39, 523 N.Y.S.2d 480, 517 N.E.2d 1365, supra ). The exercise of such "independent judgment" applies to this Court notwithstanding the constraints upon our factual review powers (see, Prozeralik v. Capital Cities Communications, 82 N.Y.2d, at 475, 605 N.Y.S.2d 218, 626 N.E.2d 34, supra; see also, Mahoney v. Adirondack Publ. Co., 71 N.Y.2d at 39, 523 N.Y.S.2d 480, 517 N.E.2d 1365, supra). "Convincing clarity" is synonymous with the "clear and convincing" standard (see, Anderson v. Liberty Lobby, 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202; Bose Corp. v. Consumers Union of U.S., 466 U.S. 485, 511, n. 30, 104 S.Ct. 1949, 1965, n. 30, 80 L.Ed.2d 502, supra ).

This standard of "convincing clarity" applies even on a motion for summary judgment (Anderson v. Liberty Lobby, 477 U.S., at 254, 106 S.Ct., at 2513, supra ). Moreover, "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party * * *. If the evidence is merely colorable * * * or is not significantly probative * * *, summary judgment may be granted" (id., at 249-250, 106 S.Ct. at 2510-11 [citations omitted].

Plaintiff claims that the statement at issue was published with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false. Plaintiff argues that here, as in Harte-Hanks, defendant (1) received conflicting information, (2) was advised of a witness who could confirm the probable falsity of the accuser's charges, and (3) failed to make any effort to interview that witness. The alleged conflict, according to plaintiff, is between Hoglander's account of plaintiff's statement and Freund's recollection of it. Hoglander, in an interview with defendant, remarked that during the meeting, plaintiff discussed the TWA machinists' animosity toward Lorenzo, that they were emotionally charged, and stated that "the [machinists] would probably trash the airpl[anes] on their overnight layovers." The statement by Freund that plaintiff considers in conflict with Hoglander's view is the following:

"Interviewer: 'Did Brian Freeman take a position about what the machinists might ...'

"Freund: 'Yea, yea but Brian was more cautious I think as a lawyer, I...

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