Hays v. American Def. Soc., Inc.

Decision Date26 November 1929
Citation252 N.Y. 266,169 N.E. 380
PartiesHAYS v. AMERICAN DEFENSE SOC., Inc., et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Arthur G. Hays against the American Defense Society, Inc., and others. From an order (224 App. Div. 588, 231 N. Y. S. 500), reversing the Special Term, which granted defendants' motion to dismiss the complaint, defendants appeal. The Appellate Division certified to Court of Appeals question: ‘Does the complaint herein state facts sufficient to constitute a cause of action?’

Reversed, and certified question answered in negative.

O'Brien, J., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Clarence W. McKay, of Rochester, and Merton E. Lewis, of New York City, for appellants.

Sidney Newborg, of New York City, for respondent.

HUBBS, J.

The complaint alleges that the defendants, in the fall of 1924, prepared, printed, and published a pamphlet entitled ‘LaFollette-Socialism-Communism,’ and that said pamphlet contained false and defamatory matter about the plaintiff, that it was published maliciously with intent to injure him and to hold him up to public hatred, ridicule, and scorn, and that it has damaged him. The complaint does not allege special damage. By innuendo the complaint alleges that the defendants, in said pamphlet, charged that the plaintiff ‘was a believer in and advocate of the principles of revolution; that he believed in the same principles as the Communists, the Workers Party of America, the Trade Union Educational League, the Federated Farmer-Labor Party, the ‘I. W. W.,’ the Soviet Government of Russia, and others; that the plaintiff advocated, promoted and excited revolt against the institutions of our country; that he was engaged in revolutionary and seditious activities with the purpose of overthrowing by force and violence the institutions and Government of the United States; that the plaintiff was guilty of a crime, to wit, conspiring to overthrow the Government of the United States by force and violence; that the plaintiff was the dupe and tool of the aforementioned parties and their leaders.' A copy of the pamphlet is annexed to the complaint and by reference made a part of it.

If in fact the pamphlet does charge the plaintiff with the things set forth in the innuendo, a good cause of action is stated and the complaint must be sustained. If, on the other hand, a fair reading of the pamphlet discloses that it does not charge the plaintiff with the things alleged in the innuendo, the complaint must be dismissed.

The plaintiff cannot enlarge or change the language used in the pamphlet by innuendo. The purpose of the innuendo is to explain the application of the words used. Words which are not libelous in themselves cannot be made so by innuendo. Fleischmann v. Bennett, 87 N. Y. 231;O'Connell v. Press Pub. Co., 214 N. Y. 352, at page 360,108 N. E. 556.

In order to constitute a libel, the words used in the alleged libelous article must refer to the plaintiff. Rule 96 of the Rules of Civil Practice, formerly section 535 of the Code of Civil Procedure, provides that: ‘The plaintiff may state in general terms that such matter was published or spoken concerning him.’ And it is unnecessaryto state in detail the facts which show that the plaintiff is a person intended to be designated in the pamphlet as a Red, a criminal, or otherwise, as charged in the innuendo. Still, if the pamphlet does not in fact charge the plaintiff with the things set forth in the innuendo, and when fairly read it appears that the plaintiff is not so charged, its meaning cannot be extended by innuendo to make it constitute a libel against him. Fleischmann v. Bennett, supra; Barringer v. Sun Printing & Publishing Ass'n, 160 App. Div. 691, 145 N. Y. S. 776. If ‘it appears upon the face of the complaint that the libel was not published of and concerning the plaintiff,’ the complaint fails to state a cause of action. Corr v. Sun Printing & Publishing Ass'n, 177 N. Y. 131, 69 N. E. 288, 289.

The purpose of the pamphlet was political. It was written to aid and published for the purpose of assisting in the defeat of LaFollette, a candidate for President in 1924; also, to stimulate in the minds of its readers an active interest in combating the growth of radicalism in this country.

The pamphlet in substance states that various radicals and radical organizations in different parts of the United States working in harmony under different names have as their purpose the precipitation of an armed revolution in the United States and the overthrow of the government of the United States by force and arms; the establishing of a dictatorship of the proletariat in the United States; and the subservience of the welfare of the United States and of its government to the communist Soviet government of Russia; further, that various radical groups with the above purpose of sedition and revolution are operated under various names and that among said radical groups are three classes of organizations:

First, the Communists, who are endeavoring to overthrow the government by force.

Second, the Workers Party of America, Trade Union Educational League, Federated Farmer-Labor party, Friends of Soviet Russia, Young Workers League of America, and the ‘I. W. W.,’ and that all of said organizations clearly understand the line of march on which they are moving and understand and appreciate that their purpose and activities are in aid of the Communist party.

Third, American Civil Liberties Union, consisting of 124 members, and Committee of 48, consisting of 33 members, of which organizations the plaintiff is a member. The pamphlet also refers to certain other organizations in this third class.

It states that the American Civil Liberties Union (of which plaintiff is a member) is aiding the Trade Union Educational League (of the second class) by means of interlocking directorates, and that listed with the Federated Farmer-Labor party (of the second class) is the Committee of 48 (of which plaintiff is a member). It does not state that the plaintiff is a member of the Communist party, or of any organization of the second class which clearly understands the line of march. Nowhere in the pamphlet is it stated that the plaintiff is a Red; that he is a criminal; that he is engaged in a movement to over-throw the government, or in any of the things set forth in the innuendo. It does state: ‘Beyond question many of the members of the organizations shackled by the interlocking directorates have no appreciation of their destination. Many of the organizations were doubtless founded by people actuated by feeling a real need for improved conditions or by humanitarian impulses.’ It does not state whether the plaintiff is a person ‘actuated by feeling a real need for improved conditions or by humanitarian impulses' or otherwise. The pamphlet further states that ‘the best way to discover ‘useful workers' and ‘skilled leadership’ in well articulated associations, societies and leagues which relate themselves to revolution indirectly by interest in similar activities is to observe the cross-beam directorates (see chart of directorates).'

The complaint alleges that the chart to directorates referred to is contained in said pamphlet under the title ‘Index to Directorates'; that this index contains a list of 396 names to which are attached key numbers and key letters through which under a so-called ‘Index to Organizations' there may be traced the alleged interlocking relationship through the so-called interlocking directorates; and that the plaintiff's name is listed in said ‘Index to Directorates' with symbols attached thereto indicating that the plaintiff is a director of the Committee of 48 and of the American Civil Liberties Union. It further alleges that the plaintiff is a member of the executive committee of the Committee of 48 and of the American Civil Liberties Union; that the purpose of the Committee of 48 is to organize into a political party voters who have lost faith in the Republican and Democratic parties and who desire political and economic changes in accordance with the...

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    ...was no defamatory matter published of and concerning the plaintiff. The court below applied the rule in Hays v. American Defense Soc., 252 N.Y. 266, 274-276, 169 N.E. 380, 382, 383. In that suit, in dismissing the complaint, we said: 'the charge made in the pamphlet is no more than that cer......
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    ...work for Cheetah's but oversee its food, beverage and talent services are members of organized crime (see Hays v. American Defense Socy., 252 N.Y. 266, 269–270, 169 N.E. 380 [1929] ; see also Carlucci, 57 N.Y.2d at 885, 456 N.Y.S.2d 44, 442 N.E.2d 442 ; Kirch v. Liberty Media Corp., 449 F.3......
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    ...work for Cheetah's but oversee its food, beverage and talent services are members of organized crime (see Hays v. American Defense Socy., 252 N.Y. 266, 269–270, 169 N.E. 380 [1929] ; see also Carlucci, 57 N.Y.2d at 885, 456 N.Y.S.2d 44, 442 N.E.2d 442 ; Kirch v. Liberty Media Corp., 449 F.3......
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