Gertz v. Robert Welch, Inc., No. 69 C 1288.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtJames A. Boyle, Jr., Chicago, Ill., for defendant
Citation322 F. Supp. 997
PartiesElmer GERTZ, Plaintiff, v. ROBERT WELCH, INC., Defendant.
Decision Date08 December 1970
Docket NumberNo. 69 C 1288.

322 F. Supp. 997

Elmer GERTZ, Plaintiff,
v.
ROBERT WELCH, INC., Defendant.

No. 69 C 1288.

United States District Court, N. D. Illinois, E. D.

December 8, 1970.


322 F. Supp. 998

Wayne B. Giampietro, Chicago, Ill., for plaintiff.

James A. Boyle, Jr., Chicago, Ill., for defendant.

MEMORANDUM OPINION

DECKER, District Judge.

In this motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, defendant Robert Welch, Inc. seeks to reverse the verdict of a jury which found him responsible for the libel per se1 of plaintiff Elmer Gertz. Damages of $50,000 were awarded.

The libel was published as the lead article in the defendant's monthly magazine American Opinion under the title "Frame-Up" with a sub-title "Richard Nuccio and the War on Police". Reprints of the article were made available immediately and were widely circulated. Nuccio was a Chicago policeman who was charged with the murder of Ronald Nelson, and the article dealt with Nuccio's murder trial and subsequent conviction. Gertz, an attorney, had been retained by the Nelson family. He represented them at the deceased's inquest, and he filed suit in their behalf in federal court. At page 12 of the 19 page article Gertz is labeled a "Leninist * * * who now turns up as lawyer for the Nelsons," and at page 17 he is described as a "Communist fronter".

One of the principal defenses at trial, and the basis for this motion, was that Gertz was a "public official" within the meaning of New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), or more properly, that he was a "public figure" within the meaning of Curtis Publishing Co. v. Butts, 388 U.S. 130, 153-155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), thus precluding a recovery of damages for a defamatory falsehood unless actual malice is shown. In denying cross motions for summary judgment, the court refused to hold as a matter of law that defendant had published with actual malice. Memorandum Opinion of September 16, 1970. Instead, factual issues raised in the affidavits required that the matter be submitted to a jury. F. R.Civ.P. 56(c).

At trial, Gertz testified as to his stature and reputation in the community. He is a prominent attorney in Chicago, having represented clients who sometimes command a wide following in the press and media. He has written books, articles and reviews which have enjoyed wide circulation. He has appeared frequently on radio and television, and has delivered numerous speeches. And he has long been involved in civic affairs.

Despite the above, the court held, in effect, that Gertz was not a public figure. In instructing the jury, the court determined that the publication in question was libelous per se. All issues were withdrawn from the jury except the proper measure of damages.

A closer examination of the article shows that its theme was more general and far reaching than just the trial of one Chicago policeman for murder. Instead, it painted the picture of a conspiratorial war being waged by the Communists against the police in general.2 Caught up in the web of the alleged conspiracy, aside from Gertz, was such a disparate cast of characters as the Lake View Citizens Council, the Walker Report, a Roman Catholic priest, and the Chicago Seed (an underground newspaper). In fact, although Gertz's picture was displayed in the body of the article, he did not play a very prominent role in the article's exposé of the purported war on police.

322 F. Supp. 999

At trial, Scott Stanley, Jr., the Managing Editor of American Opinion, testified that he had commissioned Alan Stang, a free-lance writer, to write the article. Stang had written for defendant in the past, and Stanley had always found him accurate. Stanley had never had cause to question the contents of any article that Stang had written, and to his knowledge there had not been any lawsuits arising out of Stang's articles. Relying on what he observed to be Stang's past history of accuracy, Stanley did not check the accuracy of "Frame-Up" personally.3 While it may be that the failure to check the accuracy of the article was negligent, Stanley clearly did not act with actual malice or with reckless disregard for the truth. See New York Times Co. v. Sullivan, 376 U.S. at 287-288, 84 S.Ct. 710, 11 L.Ed.2d 686.

Plaintiff having failed to establish actual malice on the part of defendant, the issue presented in this motion is whether the court properly concluded that Gertz was not a public figure. If the conclusion was proper, then the award of $50,000 by the jury was not constitutionally impermissible. However, if the court erred in holding that Gertz was not a public figure, then under the rule in New York...

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9 practice notes
  • Gertz v. Robert Welch, Inc., No. 81-2483
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 16, 1982
    ...the standard announced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 322 F.Supp. 997 (N.D.Ill.1970). Because the court found that actual malice had not been established, the jury's verdict could not stand. On appeal, this cour......
  • Masson v. New Yorker Magazine, Inc., No. C-84-7548 EFL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 9, 1993
    ...v. Sullivan. The trial court held that because actual malice had not been established, the jury verdict could not stand. Gertz v. Welch, 322 F.Supp. 997. The Court of Appeals affirmed, Gertz v. Welch, 471 F.2d 801, but was reversed by the Supreme Court. Gertz v. Welch, 418 U.S. 323, 94 S.Ct......
  • Gertz v. Robert Welch, Inc 8212 617, No. 72
    • United States
    • United States Supreme Court
    • June 25, 1974
    ...specified in the record. The court denied petitioner's cross-motion without discussion in a memorandum opinion of September 16, 1970. 2. 322 F.Supp. 997 (1970). Petitioner asserts that the entry of judgment n.o.v. on the basis of his failure to show knowledge of falsity or reckless disregar......
  • Lewis v. Newschannel 5 Network, L.P., No. M2005-00458-COA-R3-CV.
    • United States
    • Court of Appeals of Tennessee
    • May 31, 2007
    ...Figure Doctrine in First Amendment Defamation Law, 50 N.Y.L. Sch. L.Rev. 81, 83 & n. 11 (2005-2006). 22. Gertz v. Robert Welch, Inc., 322 F.Supp. 997, 999-1000 23. Gertz v. Robert Welch, Inc., 471 F.2d 801, 805-06 (7th Cir.1972). 24. Gertz v. Robert Welch, Inc., 418 U.S. at 336, 94 S.Ct. at......
  • Request a trial to view additional results
9 cases
  • Gertz v. Robert Welch, Inc., No. 81-2483
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 16, 1982
    ...the standard announced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 322 F.Supp. 997 (N.D.Ill.1970). Because the court found that actual malice had not been established, the jury's verdict could not stand. On appeal, this cour......
  • Masson v. New Yorker Magazine, Inc., No. C-84-7548 EFL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 9, 1993
    ...v. Sullivan. The trial court held that because actual malice had not been established, the jury verdict could not stand. Gertz v. Welch, 322 F.Supp. 997. The Court of Appeals affirmed, Gertz v. Welch, 471 F.2d 801, but was reversed by the Supreme Court. Gertz v. Welch, 418 U.S. 323, 94 S.Ct......
  • Gertz v. Robert Welch, Inc 8212 617, No. 72
    • United States
    • United States Supreme Court
    • June 25, 1974
    ...specified in the record. The court denied petitioner's cross-motion without discussion in a memorandum opinion of September 16, 1970. 2. 322 F.Supp. 997 (1970). Petitioner asserts that the entry of judgment n.o.v. on the basis of his failure to show knowledge of falsity or reckless disregar......
  • Lewis v. Newschannel 5 Network, L.P., No. M2005-00458-COA-R3-CV.
    • United States
    • Court of Appeals of Tennessee
    • May 31, 2007
    ...Figure Doctrine in First Amendment Defamation Law, 50 N.Y.L. Sch. L.Rev. 81, 83 & n. 11 (2005-2006). 22. Gertz v. Robert Welch, Inc., 322 F.Supp. 997, 999-1000 23. Gertz v. Robert Welch, Inc., 471 F.2d 801, 805-06 (7th Cir.1972). 24. Gertz v. Robert Welch, Inc., 418 U.S. at 336, 94 S.Ct. at......
  • Request a trial to view additional results

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