Guitar v. Westinghouse Electric Corporation

• Decision Date: 17 June 1975
• Docket Number: 73 Civ. 5287.,No. 73 Civ. 161,73 Civ. 161
• Citation: 396 F. Supp. 1042
• Parties: Mary Anne GUITAR, Plaintiff, v. WESTINGHOUSE ELECTRIC CORPORATION et al., Defendants.
• Court: U.S. District Court — Southern District of New York

396 F. Supp. 1042

Mary Anne GUITAR, Plaintiff, v. WESTINGHOUSE ELECTRIC CORPORATION et al., Defendants.

Nos. 73 Civ. 161, 73 Civ. 5287.

United States District Court, S. D. New York.

June 17, 1975.

COPYRIGHT MATERIAL OMITTED

Windels & Marx, New York City by Robert P. Knapp, Jr., Francis E. Koch, J. Dennis McGrath, New York City, for plaintiff.

Townley, Updike, Carter & Rodgers, New York City by James W. Rodgers, John J. Macchia, Esq., Raymond J. Soffientini, New York City, for defendants Westinghouse Electric Corporation, Westinghouse Broadcasting Co., Inc. (Del.) and H. Paul Jeffers.

Nicholas A. D'Onofrio, New York City, for defendants Robert Martin Corp., Robert Weinberg and Martin Berger.

Mitchell, Mina & Madison, New York City by F. V. Mina, New York City, for defendants Margaret Migliore Schneider and Gerald David Lloyd.

Cerchiara & Cerchiara, Mount Vernon, by Vincent F. Cerchiara, Mount Vernon, N. Y., for defendant John Yottes.

OPINION

ROBERT L. CARTER, District Judge.

This action was commenced in early 1973 alleging defamation and a conspiracy to violate certain sections of the Communications Act of 1934, as amended. A second action, consolidated with the principal one, contains similar claims.¹ Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1332.

Parties

Plaintiff is a free-lance writer residing in Connecticut. Defendant Westinghouse Broadcasting Co., Inc. (Del.) ("Broadcasting") owns and is the licensee of radio station WINS in New York City. Broadcasting is a wholly-owned subsidiary of Westinghouse Broadcasting Co., Inc. (Ind.), an Indiana corporation which in turn is a wholly-owned subsidiary of defendant Westinghouse Electric Corporation ("Electric"). Defendant H. Paul Jeffers was a full-time news editor employed by WINS. Defendant John Yottes was a "some time casual" employee at WINS prior to December 3, 1972, and subsequent to February 2, 1973. Defendant Robert Martin Corporation is a New York corporation engaged in the construction and development of a real estate project in Westchester known as Tarrygreen. Defendant Martin Berger is its president; defendant Robert Weinberg is its chairman of the board; defendant Gerald David Lloyd (in the second action) is its vice president; and defendant Margaret Migliore Schneider (in the second action) is its employee.

Factual Background

On December 17, 1972, WINS broadcast a review by Jeffers of a book written by plaintiff entitled "Property Power." The review stated:

"The hope of a lot of city dwellers is to find a place in the suburbs or the country with trees and green grass and clean air. Indeed, that `better life' has long been part of the so-called American dream. But, as you may have noticed, some suburbanites are not too eager to have city folk moving in. An article in yesterday's Times describes resistance in New England to new home building. This suburban resistance is the subject of a book by Mary Anne Guitar, who is neither a city planner nor an architect, but rather a writer about homes and conservation. Her book is PROPERTY POWER. It amounts to a handbook on how to keep others out. Not just the businesses which have been looking to relocate in the suburbs, but also people. Mary Anne Guitar recommends an amazing arsenal of weapons to keep the suburbs pure — law suits, the ballot box, tax-payer petitions, and many, many other devices. The battle cry seems to be `keep the others out.' People become secondary to trees and space . . . especially if the people are new comers. PROPERTY POWER denounces progress even if it means decent, livable homes for people. PROPERTY POWER says the rose covered cottage in the country is okay for those who got there first but must be off-limits to those who now would like to breathe some of that fresh country air. The author of PROPERTY POWER lives in Redding, Connecticut and has been busy there keeping HER piece of New England `clean and green', as it says in her author's biography. Yet Mary Anne Guitar is not a native New Englander. She was born in Missouri. One wonders where she would be living now if someone in Redding had decided to invoke property power in the 1950's when Miss Guitar wanted to move into town. What bothers me about PROPERTY POWER is the seeming hypocrisy of it. On one hand the author writes, `most of us simply want to live on the land.' Then she proceeds to write a book telling how to keep `most of us' from doing so. Published by Doubleday at $6.95, Mary Anne Guitar's PROPERTY POWER is a blueprint for exclusion . . . and, if followed, I'm afraid it's a blueprint for stagnation in the suburbs. I'm H. Paul Jeffers."

Property Power² had been published by Doubleday in June of 1972. Prior to the Property Power review Jeffers had broadcast sixty other reviews over WINS, written eight books and produced several records.

On December 15, 1972, Jeffers read an article appearing on the front page of The New York Times entitled "New England Resists Land Development Pressures." According to Jeffers, he decided that a review of plaintiff's book would be "pertinent and timely." Affidavit of Jeffers, ¶ 3. The review was prepared and recorded on December 16, and broadcast the next day.

On December 13, 1972, a meeting at which plaintiff was a principal speaker was held by the Save Irvington Committee, an organization formed for the purpose of expressing and organizing opposition to the rezoning needed for the construction of Tarrygreen. Berger directed that Schneider and Lloyd attend this meeting, takes notes, and report their observations to him.

Yottes, who had been hired by Robert Martin Corporation to perform public relations work and services with respect to the development of Tarrygreen, taped a rebroadcast of the Jeffers' review, and gave a transcript of it to either Berger or Weinberg. In order to promote the acceptance of Tarrygreen, Berer reprinted and distributed the review, along with an additional portion entitled "Ms. Guitar quotes,"³ at a public hearing on rezoning on December 20, 1972. The "Ms. Guitar quotes" was apparently culled from Property Power, from the notes taken at the December 13 meeting, and from a magazine article which referred to plaintiff and her writings.

Contentions of the Parties

In the second amended complaint plaintiff asserts, as a first cause of action, a claim of defamation against the Robert Martin Corporation, Weinberg, Berger and Yottes based on the republication of the Jeffers' review and the "Ms. Guitar quotes" addition; as a second cause of action, a claim of defamation against Electric, Broadcasting, Jeffers and Yottes based on the original broadcast; and, as a third cause of action, a claim of conspiracy by all defendants to violate various sections of the Federal Communications Act. In the second action against Schneider and Lloyd, plaintiff asserts a claim of defamation based on the republication of the review and a claim based on the same conspiracy. The ad damnum clauses in the two actions are identical, demanding two million dollars in compensatory damages and three million dollars in punitive damages, together with costs and disbursements.

All defendants move for summary judgment pursuant to Rule 56, F.R.Civ. P., on the same grounds: (1) as to the defamation claims, that the publications are not libelous on their face, and hence are not actionable as a matter of law; that the publications are critical reviews and comment, protected by the fair comment privilege; or that the publications are protected by a constitutional privilege; (2) as to the conspiracy claims, that no private right of action exists for alleged violations of the Communications Act of 1934.

Discussion

A comparision of the parties' 9(g) statements, submitted in accordance with local rule, reveals, at best, that only immaterial facts are in dispute. Accordingly, the motions for summary judgment are well pleaded. See American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967), cert. denied, 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed.2d 752 (1972); Empire Electronics Co. v. United States, 311 F.2d 175, 180 (2d Cir. 1962).

The Defamation Claims

While the law of libel is a limitation on the right of citizenry to speak or write freely, it "recognizes fair comment as a complete defense to a charge of a libelous publication." Julian v. American Business Consultants, Inc., 2 N.Y.2d 1, 7, 155 N.Y.S. 2d 1, 7, 137 N.E.2d 1, 5 (1956).⁴ When an author submits his work to the public, "he is bound to expect, with equal equanimity, praise or blame directed at the work itself." Berg v. Printers' Ink Publishing Co., 54 F.Supp. 795, 797 (S.D.N.Y.1943), aff'd on opinion below, 141 F.2d 1022 (2d Cir. 1944). The author invites criticism, "and no matter how hostile such criticism may be, the critic enjoys a privilege to make such critical comments as long as the comment does not go beyond the published work itself to attack the author personally," Buckley v. Vidal, 327 F.Supp. 1051, 1052-53 (S.D.N.Y. 1971); Berg, supra; Triggs v. Sun Printing and Publishing Ass'n, 179 N. Y. 144, 71 N.E. 739 (1904); the facts are truly stated, Berg, supra; the comment is fair, Buckley, supra; Berg, supra; Triggs, supra; and the comment is an honest expression of the writer's real opinion, Buckley, supra; Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, Inc., 260 N.Y. 106, 183 N.E. 193 (1932).

By publishing Property Power and other articles, and appearing and speaking at public meetings, plaintiff had to expect public attention. The assertion that the review and its subsequent republication with the "Ms. Guitar quotes" addition was an attack on her personally is groundless, "except so far as any criticism of a work of art must necessarily imply a criticism of its author. . . . Such necessary implications of comments directed at the work itself are not sufficient to turn otherwise protected criticism into unprotected criticism." Buck...