Julian v. American Business Consultants, Inc.

• Citation: 2 N.Y.2d 1,155 N.Y.S.2d 1,137 N.E.2d 1
• Parties: , 137 N.E.2d 1 Joe JULIAN, Appellant, v. AMERICAN BUSINESS CONSULTANTS, Inc., et al., Respondents.
• Decision Date: 11 July 1956
• Court: New York Court of Appeals

Page 1

155 N.Y.S.2d 1

2 N.Y.2d 1, 137 N.E.2d 1

Joe JULIAN, Appellant, v. AMERICAN BUSINESS CONSULTANTS, Inc., et al., Respondents.

Court of Appeals of New York.

July 11, 1956.

Osmond K. Fraenkel and William J. Butler, New York City, for appellant.

Ira M. Millstein, Edward C. Wallace, Charles B. McGroddy, Jr., and Milton Haselkorn, New York City, for respondents.

BURKE, Judge.

The complaint in this libel suit was dismissed at the close of the plaintiff's case, on the ground that plaintiff did not prove that libelous matter had been published of and concerning him. The Appellate Division unanimously affirmed. The appeal is before us by leave of this court.

Plaintiff contends there was a question of fact which should have been submitted to the jury concerning alleged defamatory and alleged untrue statements referring to the plaintiff, contained in a book of 213 pages entitled 'Red Channels', published in 1950.

The complaint alleges that the publication was intended to, and did, convey to the public that the plaintiff, an actor, was either a Communist dupe, tool, sucker, part of a transmission belt, fellow-traveler, or a 'red channel', all of which was false and malicious and held the plaintiff up to public ridicule and contempt, and prejudiced his opportunities to earn a living. The amended answer generally denies the allegations except publication, specifically denies malice and damage, and pleads truth and fair comment as complete defenses.

The text of the book is divided into three sections, Part I, an introduction, Part II, an alphabetical index of 151 names, and Part III, an alphabetical index of organizations.

The reference in the book to the plaintiff is at page 90 and reads:

'Joe Julian Actor-Radio

Artists' Front to Win the War

National Council of the Arts, Sciences and Professions

Reported as:

Speaker. Meeting, 10/16/42.

House Un-Am. Act. Com., Appendix 9, p. 575

Attended meeting to abolish House Un-American Activities Committee, Hotel Commodore, NYC, 1/9/49.

N. Y. Jurnal-American,

12/30/48.'

The charge is made that this reference when read in connection with the title cover and an introduction of about 1,500 words contained in the first eight pages of the book, creates the impression that plaintiff was a Communist, or sympathizer, dupe, tool, sucker or part of a transmission belt, fellow-traveler or a 'red channel'. The selected words and phrases taken out of their context by plaintiff and massed in the pleading are used in different concepts. The meaning of the words and phrases, when read in context, is quite different.

The introduction states in substance that the Communists seek to exploit radio and television in order to insure procommunist propaganda, financial support, and the appearance of television and radio personalities at Communist front meetings so as to exercise a strong influence over American broadcasting and telecasting. In this effort, the authors say, skilled and talented citizens are denied employment, while procommunists, their personal friends and performers at Communist front meetings, are not only employed but 'boosted' to stardom. In turn these successful performers are called upon for contributions and more frequent appearances at meetings as their prestige with the public increases all for the greater good of the Communist cause. These efforts, innocent or not, it is opined, result in an infiltration into and dominating influence over two of the most effective propaganda instrumentalities of this era.

The critics of this alleged policy are, of course, entitled to be heard. However, if the publication is libelous and indefensible, it is actionable.

Since there are at least 10 candidates for each job in television and radio, the described secret discrimination, if it exists, is the rankest type of bigotry and intolerance. It violates the rights of the skilled and talented citizens seeking positions in the business, and also the right of the public to know that the people who enter their homes over the radio, and on the television screens, truly represent the American People. The public interest is manifest, as the airways belong to the public not to the performers, not to the sponsors, not to the advertising agencies, not to the stations, not to the networks, and not to the government. There are 52,000,000 radio homes and 135,000,000 radio sets and 38,000,000 television sets in this country. ¹ Television and radio stations are controlled by the government in other countries. In this country they are generally privately owned and operated. Publishers have the right to inform the public about the people in an industry of communication which reaches into every home in this country and many homes abroad. Such information necessarily must be based on facts from which reasonable inferences may be drawn.

The preface to Part II of the alphabetical index of names states the purpose in listing the names. It reads: 'The information set forth in the following report is taken from records available to the public. The purpose of this compilation is threefold. One, to show how the Communists have been able to carry out their plan of infiltration of the radio and television industry. Two, to indicate the extent to which many prominent actors and artists have been inveigled to lend their names, according to these public records, to organizations espousing Communists causes. This, regardless of whether they actually believe in, sympathize with, or even recognize the cause advanced. Three, to discourage actors and artists from naively lending their names to Communist organizations or causes in the future.' (Emphasis added.)

The plaintiff conceded that he had attended the meetings, and that the two organizations were properly characterized as Communist fronts. As to the introduction, the supplemental bill of particulars of the plaintiff states: 'in general, the picture of the Communists and what they stand for and the endeavor of Communists to infiltrate into the radio and television fields would not be questioned by us, and we agree that you don't have to prove this'.

Defendants argue that the truth of the above facts being undisputed, the book and the evidence establish the defense of fair comment as well as the insufficiency of the complaint.

The introduction and purpose statement of Part II mentions 'innocents', 'well-intentioned liberals', persons who 'advance Communist objectives with complete unconsciousness', 'genuine liberals', 'actors and artists have been inveigled to lend their names * * * whether they actually believe in, sympathize with, or even recognize the cause advanced', in addition to 'Communist', 'fellow traveler', or 'part of a transmission belt'. There is no allusion in the book, containing 151 names, to indicate in which, if any, of the categories the plaintiff belongs. It does show he was not in the category of a member of the Communist party.

The Communist attempts to infiltrate American life are matters, needless to say, of the deepest and broadest concern.

In this State and this country, every citizen has a constitutional right to free speech. The law of libel is a limitation on the right of every citizen to write freely. Just as the constitutional right of free speech must be extended to all our citizens equally and without discrimination, so also the limitations must be based upon a rule or doctrine which does not create a preference or discrimination in favor of or against any citizen or group of citizens. We may not brush aside constitutional rights by setting up a double standard for comment. Any invasion of the freedom of the press justifies a concern about the inviolability of that great right.

In furtherance of the preservation of the right to write freely, the law of libel recognizes fair comment as a complete defense to a charge of a libelous publication. The comment must be fair. It must be a reasonable inference from facts truly stated. The basis of the right of comment is a public thing or act. We know from experience that political subjects are always controversial. They elicit divergent opinions. The same act may be greeted with praise, indifference or denunciation. The protection of political comment which has been written because the circumstances are of public interest, is indispensable to the exercise of freedom. This right every citizen possesses as a citizen. It is not merely a privilege. Editors, actors, writers, teachers and lawyers enjoy no higher right. The constitutions guarantee a right to all citizens to criticize the government and governmental bodies. The defenders of the activities of government have an equal right to criticize the critics. Criticism in political debates is biased, unkind and hostile, but nevertheless, not actionable.

In this case there is more than proof of the usual political activity. There is an admission that the plaintiff appeared at two Communist front meetings and a concession by the plaintiff that the Communists are attempting to infiltrate television and radio.

The plaintiff, an actor in the radio and television industry, a major medium in the shaping of public opinion, performed a public act in appearing and reciting at the meetings organized by Communist fronts. With frequent access to the radio and television audience, actors, writers, directors and producers can and do mold the thinking of our citizens to a degree far greater than our leaders in political, economic, philosophic or religious life, who cannot afford to or do not utilize these media extensively.

With these circumstances in mind, even if defamatory matter could be deemed to have been published of and concerning the plaintiff, we nevertheless hold that the defense of fair comment is complete as a matter of law. If the public figure's political activities at sponsored Communist front rallies cannot be criticized, and his presence on radio or television cannot be challenged as being opposed to the national...