Gordon v. Random House, Inc.

• Decision Date: 07 November 1973
• Docket Number: No. 72-2150.,72-2150.
• Citation: 486 F.2d 1356
• Parties: Max GORDON et al. v. RANDOM HOUSE, INC., Max Gordon, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

486 F.2d 1356 (1973)

Max GORDON et al. v. RANDOM HOUSE, INC., Max Gordon, Appellant.

No. 72-2150.

United States Court of Appeals, Third Circuit.

Argued September 17, 1973.

Decided November 7, 1973.

Benjamin Paul, Philadelphia, Pa., for appellant.

Ira P. Tiger, Ralph G. Wellington, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.

Before KALODNER, ALDISERT and GARTH, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question for decision is whether a genuine issue of material fact existed in a libel action thereby precluding entry of summary judgment in favor of the book publisher. Relying on Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811, 29 L.Ed.2d 296 (1971), and New York Times Co. v. Sullivan, 376 U. S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the district court, 349 F.Supp. 919, ruled as a matter of law that the alleged defamatory statements were not published with knowledge that they were false or with reckless disregard as to whether the statements were false. Contending that the publisher's affidavits in support of its motion for summary judgment and Gordon's opposing affidavits presented a jury question, the plaintiff has appealed. We reverse, vacate the judgment, and remand for the development of a complete record at trial.

I.

Max Gordon, a Philadelphia retailer of the Jewish faith, sued Random House, a book publisher, in libel for alleged defamatory statements contained in the prologue to a book entitled "The Negroes and the Jews" authored by Lenora E. Berson. The book was published in April, 1971.

The Prologue relates that Gordon had escaped the pogroms of Russia, had become a business retailer through the dint of hard work and sacrifice, and then had become a victim of the 1964 North Philadelphia black community riots. Counterposing the Gordon story is the story of "Earl," a black itinerant, allegedly interviewed on a Harlem park bench, who explains why he hates Jews, especially those in the retail business who sell cheap clothes at high prices and "gyp" blacks. The Prologue effectively portrays a picture of metropolitan neighborhoods becoming black and Puerto Rican, with "the Max Gordon's and their younger, more Americanized coreligionists . . . forming the business infra-structure," portraying Gordon as a Jewish merchant in conflict with "Earl" and other blacks: "As antagonists they may well hasten the nation down the bloody road of racism and reaction."

Plaintiff grounds his libel action, brought in diversity under 28 U.S.C. § 1332 with Pennsylvania substantive law governing, on the theory that the book's implication is that he is a dishonest merchant who cheats blacks and is causing trouble and difficulties for this nation.

It is the publisher's position that Gordon was not entitled to a trial on the substantive merits of this claim because, irrespective of whether Gordon was famous, he had become involved in a matter of "public or general concern" by his conduct when he telephoned his 1964 Philadelphia riot experiences to the Philadelphia Inquirer, which later published an account of Gordon's experiences. The publisher contends that the relationship between Jewish merchants and inner-city blacks has been the subject of widespread public interest in national news magazines and many national and local publications. It is on this basis that Random House contends that it comes within the "involvement in an event of public or general concern" protection of the plurality opinion of Rosenbloom. Accordingly, the publisher argues that for Gordon to have the substantive merits of his libel claim heard, it is necessary for him to show that the "defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not."

Gordon does not contend that Random House published with actual knowledge of the falsehood. Rather he seems to proceed on twin theories: First, he contends that the New York Times rule does not apply and that Pennsylvania libel law of lack of reasonable care is the appropriate standard. Alternatively, if New York Times does apply, there is a sufficient issue of "reckless disregard": that considering the cumulative effect of the lack of investigatory efforts, of advertising the book as containing actual interviews, of the inaccuracy of the Prologue and of the inherent improbability of "Earl's" statements, a sufficient issue was joined to have a fact finder decide whether the publisher acted with a reckless disregard.

The publisher filed affidavits explaining that Lenora E. Berson represented that the factual statements in the Prologue concerning Max Gordon were based on an actual interview she had with him, plus information contained in the public press. In her deposition the author stated that she talked by telephone to a man representing himself as Gordon. For his part, Gordon denies either a face to face or a telephonic interview.

Random advertised: "Through actual interviews and personal experiences, the author analyzes the complex sociological and economic pressures exerted on and by Blacks and Jews. . . ." (Emphasis supplied.) Gordon, on the other hand, showed that "Earl" was never interviewed by Berson.

Random House sets forth affidavits by its representatives stating that it had no reason to doubt the author's veracity and, accordingly, made no further investigation. Gordon replies in kind that because of the potential for defamation Random House should have done more than take its author's word at face value. Gordon contends that the publisher should have investigated the authenticity of the critical interviews with Gordon and "Earl".¹

II.

The landmark New York Times case held that the constitutional guarantee of freedoms of speech and press imposed severe restrictions on the state libel laws when the allegedly defamatory publications related to official conduct of a public official. The Court said that these constitutional guarantees prohibit recovery of damages "unless he the public official proves that the 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." 376 U.S. at 279-280, 84 S.Ct. at 726. The Court required proof of "actual malice" presented with "convincing clarity" or proof of "the recklessness that is required for a finding of actual malice." 376 U.S. at 285-286, 288, 84 S.Ct. at 730.

The protection originally granted the publications relating to "public officials" were later extended to cover "public figures." Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The Rosenbloom plurality articulated both the legal precept and the procedural standards utilized by the district court in the case before us: ". . . a libel action . . . by a private individual . . . for a defamatory falsehood in a . . . publication relating to his involvement in an event of public of general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not." 403 U.S. at 52, 91 S.Ct. at 1824. Footnote omitted. "Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." 403 U. S. at 56, 91 S.Ct. at 1826.

III.

We experience some discomfort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law for this proceeding. Although the district court seemed quick to accept the opinion of three Supreme Court Justices as ruling case law, we are constrained to observe that the affirmance of this court's judgment in that case was produced by a majority coalition of Supreme Court Justices for diverse reasons.²

Justice Black concurred in the result because he and Justice Douglas "found no room in the First Amendment for any defamation recovery whatsoever." 403 U.S. at 58, 91 S.Ct. at 1827. Justice Black is no longer on the court. Justice White concurred in the result because he found that Rosenbloom had been arrested by a police officer, a public official, and that therefore the New York Times doctrine was applicable: ". . . discussion of the official actions of public servants such as the police is constitutionally privileged. . . . In the present case, for example, the public would learn nothing if publication only of the fact that the police made an arrest were permitted. . . ." 403 U.S. at 61, 91 S.Ct. at 1828. It is open to conjecture whether Justice White would apply the New York Times rule to the facts in the case before us.

Justices Stewart and Marshall, dissenting, suggested a remand "for a determination of whether Mr. Rosenbloom can show any actual loss." 403 U.S. at 87, 91 S.Ct. at 1841. They expressly rejected the plurality's "conditional constitutional privilege for defamation published in connection with an event that is found to be of `public or general concern.'"³ 403 U.S. at 78, 91 S.Ct. at 1837.

Justice Harlan, who is also no longer on the court, expressed still a fourth viewpoint: "It is, then, my judgment that the reasonable care standard adequately serves those First Amendment values that must inform the definition of actionable libel and that those special considerations that made even this standard an insufficiently precise technique when applied to plaintiffs who are `public officials' or `public figures' do not obtain where the litigant is a purely private individual." 403 U.S. at 72, 91 S.Ct. at 1833, Harlan, J., Dissenting.

Confronted with the foregoing diverse expressions, we are unable to share the certainty of the district court in accepting the Rosenbloom plurality as the law of this case. Justice Holmes'...