James v. Gannett Co., Inc.

• Citation: 353 N.E.2d 834,386 N.Y.S.2d 871,40 N.Y.2d 415
• Parties: , 353 N.E.2d 834 Samantha JAMES, Respondent, v. GANNETT CO., INC., Appellant.
• Decision Date: 13 July 1976
• Court: New York Court of Appeals

Page 871

386 N.Y.S.2d 871

40 N.Y.2d 415, 353 N.E.2d 834

Samantha JAMES, Respondent, v. GANNETT CO., INC., Appellant.

Court of Appeals of New York.

July 13, 1976.

John B. McCrory, Rochester, for appellant.

Charles O. Baisch and Charles A. Schiano, Rochester, for respondent.

JASEN, Judge.

Plaintiff Samantha James is a professional belly dancer whose cabaret performances have placed her figure in the public spotlight. Her pursuit of this exotic specialty aroused a certain public curiosity and prompted the publication of a feature article about her life and trade, complete with photographs, in defendant's Rochester newspaper. The plaintiff complains that two sentences of this article libeled her and has sued for damages. Special Term granted defendant's motion to dismiss 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, the plaintiff, a public celebrity, has failed to state facts sufficient to generate a triable issue on maliciousness of defendant's publication. In our view, the motion for summary judgment was properly granted by Special Term and we now reverse the order of the Appellate Division.

On July 9, 1972, an article entitled 'Samantha's belly business' appeared in the Sunday supplement, Upstate, of the Rochester Democrat & Chronicle, a newspaper published by the Gannett Co., Inc. The story, prepared by one of the newspaper's reporters based upon an interview with the plaintiff, described the plaintiff as the 'undisputed queen of the exotic stages of Upstate New York, Rochester's belly dancer in residence.' Without delving into unnecessary detail, it suffices to note that the four-page story discussed the plaintiff's background, set forth her views on life in general, her approach to her business, and described two of her dancing routines. Accompanying photographs depicted the plaintiff in her dressing room, on the stage, and arriving for work. Quotations from the interview with plaintiff are sprinkled liberally throughout the article. In one of the opening paragraphs, the writer stated: 'A petite (but for her bust), platinum blonde, Samantha vibrates from the 10 10-foot stage at the Encore Club three times a night, six nights a week.'

The plaintiff finds fault with two sentences in the article, denying that she made statements attributed to her. Specifically she objects to the statement that 'she admits to selling her time to lonely old men with money, for as much as $400 an evening in one case, 'just to sit with him and be nice to him'.' In a later paragraph, the plaintiff is quoted as saying: "Most men can talk to me. They can't talk to their wives because they're blocked by society. Do you understand what I'm saying? They're looking for something they've lost at home. This is my business. Men is my business." Of this paragraph, the plaintiff objects only to the phrase, 'Men is my business'. The plaintiff does not deny making any of the other quotations attributed to her in the article.

In her complaint, the plaintiff alleged that, by the two sentences cited, 'the defendant meant, and intended to mean, and was understood by the readers of said newspaper as meaning that the plaintiff was acting as a prostitute who was offering her body and her time for sale at a price, was committing the crime of prostitution, was committing adultery, was sleeping and having intercourse with various and sundry male persons for a profit; that plaintiff was a person of low and despicable moral character.' The plaintiff claimed that the allegedly false publication discredited her reputation in the community, resulting in damages of $500,000. She also asserted that, as a result of the article, she has not been able to open a planned dancing school, that she has not been able to teach cosmetology and is 'in imminent danger' of losing her membership in the American Guild of Variety Artists. Her claims of 'special' damage total $135,000. In its answer, the defendant stood by its article, asserting that the plaintiff did make the disputed statements and that her remarks were accurately reported.

We agree with the dissenting Justices at the Appellate Division that the published article, when read in context, was not defamatory. It is old law that written charges imputing unchaste conduct to a woman are libelous per se, obviating the need to allege and prove special damages. (See, e.g., Gates v. New York Recorder Co., 155 N.Y. 228, 231, 49 N.E. 769, 770; 34 N.Y.Jur., Libel and Slander, §§ 3, 14; see, also, Civil Rights Law, § 77.) However, whether the words complained of would constitute a libel per se or a libel per quod, it is for the court to decide whether the words are susceptible of the meaning ascribed to them. (Tracy v. Newsday, Inc., 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 3, 155 N.E.2d 853, 854; see Crane v. New York World Tel. Corp., 308 N.Y. 470, 479--480, 126 N.E.2d 753, 759; Cafferty v. Southern Tier Pub. Co., 226 N.Y. 87, 123 N.E. 76.) The court must decide whether there is a reasonable basis for drawing the defamatory conclusion. If the contested statements are reasonably susceptible of a defamatory connotation, then 'it becomes the jury's function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader.' (Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257, 259.) In analyzing the words in order to ascertain whether a question of fact exists for resolution upon trial, the court will not pick out and isolate particular phrases but will consider the publication as a whole. (Julian v. American Business Consultants, 2 N.Y.2d 1, 23, 155 N.Y.S.2d 1, 21, 137 N.E.2d 1, 15.) The publication will be tested by its effect upon the average reader. (Sydney v. Macfadden Newspaper Pub. Corp., 242 N.Y. 208, 214, 151 N.E. 209, 210; Everett v. Gross, 22 A.D.2d 257, 258, 254 N.Y.S.2d 561, 562.) The language will be given a fair reading and the court will not strain to place a particular interpretation on the published words. (See Drug Research Corp. v. Curtis Pub. Co., 7 N.Y.2d 435, 440, 199 N.Y.S.2d 33, 36, 166 N.E.2d 319, 321; Julian v. American Business Consultants, supra.) The statement complained of will be 'read against the background of its issuance' with respect to 'the circumstances of its publication'. (Mencher v. Chesley, 297 N.Y. 94, 99, 75 N.E.2d 257, 259, Supra.) 'It is the duty of the court, in an action for libel, to understand the publication in the same manner that others would naturally do. 'The construction which it behooves a court of justice to put on a publication which is alleged to be libellous is to be derived as well from the expressions used as from the whole scope and apparent object of the writer'.' (Cooper v. Greeley, 1 Denio 347, 358; More v. Bennett, 48 N.Y. 472, 475--476.)

In applying these traditional standards to this case, we find there is absolutely no basis from which the ordinary reader could draw an inference of prostitution from the paragraph containing the statement: 'Men is my business'. The thrust of the paragraph, read as a whole with the entire article, was that the plaintiff believed that men attended her shows in order to obtain a form of entertainment not available in their homes. It cannot be said, as a matter of law, that, so construed, these remarks may impute unchastity or prostitution to the plaintiff. Indeed, it is to be expected that the talents of a female belly dancer would generally hold a greater attraction for men than for women and, since the plaintiff's audience is predominately male, it is but a truism to suggest that men are her business. From the entire article, it is clear that her 'business' consists of displaying her dancing ability and does not involve acts of illegality or promiscuity.

The second alleged libel, that plaintiff sold her time to lonely old men, is a bit more difficult. However, we again conclude that this sentence is not susceptible to a defamatory construction. Although, on its face, this portion of the article states that the plaintiff sold her time to men on occasion, the statement itself negates the possibility that the plaintiff was thereby committing an act of prostitution since her role was to do no more than 'sit with him and be nice to him'. Whether a publication alleging that a woman sold her time to men charges an act of prostitution depends necessarily upon what services were to be performed in exchange for the money tendered to the woman. (See Hemmens v. Nelson, 138 N.Y. 517, 530--531, 34 N.E. 342, 346--347.) For it is plain that many women sell legitimate, professional services, involving an expenditure of personal time, to male customers. Doctors, lawyers, designers, and nurses are but a few examples. Here, the publication does no more than allege that the plaintiff accepted money in return for providing a few hours of companionship to lonely men. There is nothing in the sentence complained of to support an inference that the sale of anything more was involved. Any lingering doubt is resolved by a review of the entire article which establishes that plaintiff is a professional belly dancer who markets her own nightclub act 'as an all-but-lost art as much as erotic entertainment.' We conclude that the article, read as a whole, is incapable, as a matter of law, of bearing the libelous meaning that plaintiff would ascribe to it. We reject plaintiff's attempt to pick at two sentences from a feature article and impute to them a libelous connotation that the whole article, let alone the specific sentences, will not bear.

We believe that plaintiff's cause of action is defective in a second respect. We conclude that the plaintiff, for the purposes of this publication, was a public personality and that the plaintiff was, therefore,...