James v. Gannett Co., Inc.
| Decision Date | 23 April 1975 |
| Citation | 366 N.Y.S.2d 737,47 A.D.2d 437 |
| Parties | Samantha JAMES, Appellant, v. GANNETT CO., INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Charles A. Schiano, Rochester (Charles Baisch, Rochester, of counsel), for appellant.
Nixon, Hargrave, Devans & Doyle, Rochester (John B. McCrory, Rochester, of counsel), for respondent.
Before MOULE, J.P., and CARDAMONE, SIMONS, GOLDMAN and DEL VECCHIO, JJ.
Plaintiff is a belly dancer. She earns her living by performing in nightclubs. In a feature article appearing in defendant's newspaper, it was suggested that plaintiff had another source of income. The article contained these two statements attributed to her: (1) '. . . and she admits to selling her time to lonely old men with money, for as much as $400 per evening in one case 'just to sit with him and be nice to him" and (2) Plaintiff claims that by these words, purporting to be direct quotations of her remarks during the interview with defendant's reporter, the article pictured her as engaging in illegal and immoral activities, or at the very least, it degraded her before the public.
Special Term granted defendant's motion for summary judgment holding that plaintiff is a public figure and that she, therefore, may not establish a cause of action for defamation without proving actual malice under the rule in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.
Fairly construed, plaintiff's pleadings make it clear that the substance of her claim is that these statements were never uttered by her but were concocted by defendant's reporter. Manifestly, if defendant's reporter fabricated the quotations, then defendant was guilty of actual malice in the constitutional sense because each quote was published 'with knowledge that it was false or with reckless disregard of whether it was false or not' (New York Times Co. v. Sullivan, supra, 279--280, 84 S.Ct. at 726).
We tolerate the inevitable misstatements which occasionally occur in the exercise of uninhibited speech and press because of our national commitment to free expression. That commitment may permit without penalty the erroneous description of a public figure as a prostitute when made without actual malice but there is no overriding constitutional principle which excuses a newspaper from falsely depicting plaintiff as a self-proclaimed prostitute. Calculated falsehood falls outside 'the fruitful exercise of the right of free speech' (Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52, 91 S.Ct. 1811, 1824, 29 L.Ed.2d 296) and falls within the class of publications for which liability may be imposed under the New York Times standard. The purpose of the New York Times rule is to promote the search for truth--not to encourage embellishment of the facts, and particularly not to encourage spicing-up a story with clearly libelous fabrications (see Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 470, 42 L.Ed.2d 419; cf. Steak Bit of Westbury v. Newsday, 70 Misc.2d 437, 442--443, 334 N.Y.S.2d 325, 331--332).
The requirement that defendant be answerable for the accuracy of direct quotations attributed to plaintiff under the facts of this case does not impose an onerous burden upon it and does not run afoul of the principle of free discussion stated in the New York Times case. This is not a case which focuses on the standards of investigation of the truthfulness of the matter reported or on the degree of awareness of probable falsity; defendant's publication purported to repeat statements made by plaintiff herself during the course of a pre-arranged interview. There was no immediacy to either the interview or the publication of this feature story as a part of a Sunday news supplement and the fact that there is no issue of misquotation or mistaken attribution of the remarks negate any suggestion of negligence or honest error. The falsity, if it existed, was in the representation that plaintiff had so spoken of herself. If she did not do so defendant, through its employee, knew of the falsity of its publication. Plaintiff's categoric denial of the statements attributed to her in defendant's newspaper created a question of fact with respect to the falsity of the quotations and the concomitant knowledge of the falsity on the part of defendant.
The order should be reversed and the motion for summary judgment denied.
Order reversed with costs and motion denied.
Samantha James, the appellant in this case, is an exotic belly dancer who performs publicly at the Encore Club in Rochester, New York. As a result of an interview with a reporter for the respondent Gannett Co., Inc., an article appeared on July 9, 1972 in the 'Upstate', a Sunday supplement to Rochester's 'Democrat & Chronicle' published and distributed by respondent, titled 'Samantha's Belly Business'. Appellant claims that this feature story libeled her by the publication of these words: '. . . and she admits to selling her time to lonely old men with money, for as much as $400.00 an evening in one case, 'just to sit with him and be nice to him" and, later in the same story this statement attributed to appellant appeared: .
In the first cause of action of her complaint appellant alleges that the quoted portions of the story were 'wholly false' and that respondent knew or should have known that the statements were untrue. In her second cause of action appellant contends that by these statements the respondent meant and 'was understood by the readers of said newspaper as meaning that (appellant) was acting as a prostitute who was offering her body and her time for sale at a price'. Special Term concluded that appellant is a public figure and granted respondent's motion for summary judgment. The majority, while conceding that appellant is a public figure would reverse and grant a trial on the question of fact which they find is created by the pleadings. We dissent.
The First Amendment to the Constitution of the United States provides that 'Congress shall make no law . . . abridging the freedom . . . of the press'. Section 8 of Article 1 of the New York State Constitution contains a like provision. 1 Prior to the Supreme Court's decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, these constitutional guarantees of freedom of speech and of the press did not protect libelous utterances (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715). In New York Times, the Supreme Court first held that a public official could recover from the media only upon proof that he had been libeled knowingly or with reckless disregard for the truth and that plaintiff has the burden of proving such 'actual malice' with 'convincing clarity'. (376 U.S. pp. 280, 285--286, 84 S.Ct. pp. 726, 729.) This judge-made rule added to state tort law a constitutional zone of protection for errors of fact caused by negligence (see Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45). The rationale of the New York Times case was that there is a special realm of public debate with respect to public issues that is central to the purposes of the first amendment and which deserves special protection. Although there is no public interest in protecting false statements, it was feared that assessing damages for honest errors in the criticism of a public official would result in a debilitating self-censorship.
Three years after New York Times Co. v. Sullivan the Supreme Court in Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, imposed upon public figures the same burden of proof as had been applied to public officials. Thereafter in Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, a completely fractionalized court further extended the New York Times principle to private individuals who were defamed in the course of a broadcast discussing an issue of public concern. Then, on June 25, 1974, the Supreme Court decided Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, retreating from its position in Metromedia 2 and ruling that a prominent attorney was not a 'public official' or a 'public figure' but rather a private individual who, as such, deserved a greater degree of protection. Unlike the public figure who has either sought publicity for his activities or voluntarily assumed a position in society where such publicity is to be expected, the private individual has made no such choice and therefore has a more compelling call on the courts for redress (418 U.S. at 345, 94 S.Ct. 2997).
A line of demarcation is now drawn. On the one side stand public officials and public figures who when seeking to recover for an alleged libel must meet the 'actual malice' standard of proof set forth in New York Times Co. v. Sullivan. On the other side stand private individuals who, even when involved in events of public or general interest, do not have such a strict burden of proof. The private individual may recover upon a showing of negligence or whatever other appropriate standard a state may set to impose liability upon a defendant, so long as it does not permit punitive damages or liability without fault (Gertz v. Robert Welch, Inc., supra, 418 U.S. p. 453, 94 S.Ct. 2997 (Blackmun, J., concurring)). Thus the constitutional zone of protection for the publisher's of fact caused by negligence has been removed where there is a determination that the plaintiff is a...
To continue reading
Request your trial
-
James v. Gannett Co., Inc.
...the complaint. The Appellate Division, two Justices dissenting, reversed and directed a trial on disputed issues of fact. (47 A.D.2d 437, 366 N.Y.S.2d 737.) We conclude that the sentences complained of are not reasonably susceptible to any defamatory interpretation and that, in any event, t......