Immuno AG. v. Moor-Jankowski

• Citation: 566 N.Y.S.2d 906,567 N.E.2d 1270,77 N.Y.2d 235
• Decision Date: 15 January 1991
• Docket Number: R,MOOR-JANKOWSK
• Parties: , 567 N.E.2d 1270, 59 USLW 2459, 18 Media L. Rep. 1625 IMMUNO AG., Appellant, v. J.espondent.
• Court: New York Court of Appeals

Page 906

566 N.Y.S.2d 906

77 N.Y.2d 235, 567 N.E.2d 1270, 59

USLW 2459,

18 Media L. Rep. 1625

IMMUNO AG., Appellant, v. J. MOOR-JANKOWSKI, Respondent.

Court of Appeals of New York.

Jan. 15, 1991.

Certiorari Denied June 3, 1991.

See 111 S.Ct. 2261.

[77 N.Y.2d 236] [567 N.E.2d 1271] Raymond S. Fersko, Anders R. Sterner, Mitchell Lapidus and Jonathan W. Lubell, New York City, for appellant.

[77 N.Y.2d 237] Philip A. Byler and Louis Lauer, New York City, for respondent.

Floyd Abrams, Taryn V. Shelton, Robert J. Pape, Kathryn J. Rodgers, Thomas DeJulio, Michael G. MacDonald, James E. McCarthy, III, S. Andrew Schaffer, Ada Meloy, New York City, Shelley Sanders Kehl, Brooklyn, Herbert D. Schwartzman, Jamaica, Thomas S. Evans, Syracuse, and Martin H. Bockstein, New York City, for Adelphi University et al., amici curiae.

[77 N.Y.2d 238] Laura M. Mattera, New York City, for Sierra Club et al., amici curiae.

Henry R. Kaufman, New York City, for World Wildlife Fund et al., amici curiae.

Arthur N. Eisenberg and Kenneth P. Norwick, New York City, for New York Civil Liberties Union, amicus curiae.

[77 N.Y.2d 239] Edward A. Miller, New York City, for Association of American Publishers, Inc., amicus curiae.

OPINION OF THE COURT

KAYE, Judge.

One year ago, applying what appeared to be settled law, we affirmed the dismissal of plaintiff's libel action against the editor of a scientific journal, essentially for his publication of a signed letter to the editor on a subject of public controversy. We concluded that there was no triable issue of fact as to the falsity of the threshold factual assertions of the letter, that--beyond those threshold factual assertions--the letter writer's statements of opinion were entitled to the absolute protection of the State and Federal constitutional free speech guarantees, and that charges of defendant's deliberate incitement to have a defamatory letter published lacked factual foundation (Immuno AG. v. Moor-Jankowski, 74 N.Y.2d 548, 549 N.Y.S.2d 938, 549 N.E.2d 129).

On plaintiff's petition, the United States Supreme Court granted certiorari, vacated our judgment, and remanded the case for further consideration in light of Milkovich v. Lorain Journal Co., 497 U.S. ----, 110 S.Ct. 2695, 111 L.Ed.2d 1, decided June 21, 1990. --- U.S. ----, 110 S.Ct. 3266, 111 L.Ed.2d 776. For the reasons stated below, we adhere to our determination that defendant's summary judgment motion was properly granted and the complaint dismissed, premising our decision on independent State constitutional grounds as well as the Federal review directed by the Supreme Court.

I.

This libel action arises out of a letter to the editor published in the Journal of Medical Primatology in December 1983. The letter was written by Dr. Shirley McGreal as Chairwoman of the International Primate Protection League (IPPL), an organization known for its vigorous advocacy on behalf of primates, particularly those used for biomedical research. Defendant Dr. J. Moor-Jankowski, a professor of medical research at New York University School of Medicine and director of the Laboratory for Experimental Medicine and Surgery in Primates of the New York University Medical Center, is cofounder and editor of the Journal.

The subject of McGreal's letter (reprinted at 145 A.D.2d 114 at 118-120, 537 N.Y.S.2d 129) was a plan by plaintiff, Immuno AG.--a multinational corporation based in Austria that manufactures biologic products derived from blood plasma--to establish a facility in Sierra Leone, West Africa, for hepatitis research using chimpanzees. Voicing the concerns of IPPL, McGreal's letter was critical of Immuno's proposal on a number of grounds: (1) that the motivation for the plan was presumably to avoid international policies or legal restrictions on the importation of chimpanzees, an endangered species; (2) that it could decimate the wild chimpanzee population, as capture of chimpanzees generally involved killing their mothers, and it was questionable whether experimental animals could be returned to the wild, as plaintiff proposed; and (3) that returning the animals to the wild could well spread hepatitis to the rest of the chimpanzee population. McGreal stated that the current population of captive chimpanzees should be adequate to supply any legitimate requirements.

The letter was prefaced by an Editorial Note written by defendant that set out its background. Identifying McGreal as Chairwoman of IPPL, the Note stated that the Journal had received the initial version of the letter in January 1983 and had submitted it to plaintiff for comment or reply. ¹ Plaintiff had acknowledged receipt of defendant's letter in February, offering no comment but that it was referring the matter to its New York lawyers. Thereafter, plaintiff's lawyers wrote that the statements were inaccurate, unfair and reckless, and requested the documents upon which the accusations were based, threatening legal action if the letter were printed before plaintiff had a meaningful opportunity to reply. The Editorial Note went on to state that the editors had advised plaintiff's attorneys that they should obtain the documentation directly from McGreal, and extended the period for plaintiff's reply by two months. The letter was published nearly a year after its receipt. In the meantime, articles had appeared in the Austrian press apparently confirming much of what McGreal had written, and defendant received no further word from plaintiff or its lawyers.

In addition to the letter that is the focus of contention, plaintiff complains that it was defamed by comments made by defendant quoted in an article entitled "Loophole May Allow Trade in African Chimps" that appeared in the New Scientist magazine shortly before McGreal's letter was published. Defendant is quoted as saying that the supply of captive chimpanzees was sufficient for research, describing plaintiff's attempts to circumvent controls on endangered species as "scientific imperialism," and warning that they will "backfire on people like me involved in the bona fide use of chimpanzees and other primate animals" for research.

In December 1984, plaintiff commenced this lawsuit against Moor-Jankowski and seven other defendants, including McGreal and the publishers and distributors of the New Scientist and the Journal of Medical Primatology, and it has since been vigorously litigated. By now, all the defendants except Moor-Jankowski have settled with plaintiff for what the motion court described as "substantial sums," and the complaint has been dismissed as to them. After extensive discovery--his own deposition conducted over 14 days--defendant moved for summary judgment. Supreme Court granted the motion to the extent of dismissing a claim for prima facie tort. It denied the motion as to the defamation claims, ruling that the statements at issue were statements of fact and, regardless of whether plaintiff was a public figure, there were triable issues of fact concerning whether defendant acted with actual malice in making or publishing the statements.

On defendant's appeal, the Appellate Division unanimously reversed Supreme Court's judgment (insofar as appealed from), granted defendant's motion, and dismissed the complaint (145 A.D.2d 114, 537 N.Y.S.2d 129). The court held that all of the comments attributed to defendant in the New Scientist article were expressions of opinion that could not, as a matter of law, support an action for defamation. As to the McGreal letter, the Appellate Division held that for the most part it too was a constitutionally protected expression of opinion. To the extent there were (in the court's view) statements of a factual nature, the Appellate Division examined each statement meticulously, and concluded from the voluminous record that plaintiff had failed to adduce evidence of falsity. We now affirm, adopting without further elaboration our prior conclusion as to the lack of factual foundation for the deliberate incitement charges, and concentrating our analysis on the substance of the challenged statements.

II.

Our analysis first focuses on Milkovich, in compliance with the Supreme Court's direction on remand.

As the Supreme Court wrote, Milkovich leaves in place all previously existing Federal constitutional protections, including the " ' "breathing space" ' " which " ' "freedoms of expression require in order to survive" ' " (497 U.S., at ----, 110 S.Ct., at 2706, quoting Philadelphia Newspapers v. Hepps, 475 U.S. 767, 772, 106 S.Ct. 1558, 1561, 89 L.Ed.2d 783), and specifically including immunity for statements of opinion relating to matters of public concern that do not contain a provably false factual connotation (497 U.S., at ----, 110 S.Ct., at 2706; Philadelphia Newspapers v. Hepps, supra). Milkovich, however, puts an end to the perception--as it turns out, misperception--traceable to dictum in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 that, in addition to all other Federal constitutional protections, there is a "wholesale defamation exemption for anything that might be labeled 'opinion.' " (497 U.S., at ----, 110 S.Ct., at 2705, supra.)

Thus, statements of opinion relating to matters of public concern are today no less subject to constitutional protection, but speech earns no greater protection simply because it is labeled "opinion."

The key inquiry is whether challenged expression, however labeled by defendant, would reasonably appear to state or imply assertions of objective fact. In making this inquiry, courts cannot stop at literalism. The literal words of challenged statements do not entitle a media defendant to "opinion" immunity or a libel plaintiff to go forward with its action. In determining whether speech is actionable, courts must additionally consider the impression created by the words used as well as the general tenor of the expression, from the point of view of the reasonable person.

As...