Katz v. Gladstone, Civ. No. B-85-672(JAC).

• Citation: 673 F. Supp. 76
• Decision Date: 30 October 1987
• Docket Number: Civ. No. B-85-672(JAC).
• Parties: Mark D. KATZ, Plaintiff, v. William GLADSTONE, Defendant.
• Court: U.S. District Court — District of Connecticut

673 F. Supp. 76

Mark D. KATZ, Plaintiff, v. William GLADSTONE, Defendant.

Civ. No. B-85-672(JAC).

United States District Court, D. Connecticut.

October 30, 1987.

Ronald G. Wohl, Finkelstein, Bruckman, Wohl & Rothman, New York City, for plaintiff.

Frederic S. Ury, Rubenstein & Ury, Westport, Conn., for defendant.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOSÉ A. CABRANES, District Judge:

I.

BACKGROUND

Plaintiff Mark Katz, a citizen and resident of Pennsylvania, is the author of a book entitled Custer in Photographs, published in 1985. Defendant William Gladstone, a citizen and resident of Connecticut, reviewed the book in a number of periodicals published in the United States. On December 12, 1985, plaintiff filed this diversity action, alleging that defendant's reviews were false and defamatory. Defendant answered and counterclaimed for defamation, based upon a series of letters written by plaintiff to editors and publishers concerning defendant's review. Defendant has moved for summary judgment on plaintiff's initial complaint. The resolution of the issue raised by the complaint has significant implications for the range of permissible criticism and, therefore, for the public's access to knowledgeable evaluations of works of history and literature.

Defendant's review, see Complaint (filed Dec. 12, 1985) ("Complaint"), Exhibit A, criticized plaintiff's book on various grounds, relating mainly to alleged factual inaccuracies and to the book's limitations as a resource for scholarly readers. Since the review is not long, and its language is of the essence to this action, it is quoted in full, except for the reviewer's introductory quotations from the book itself, which indicate the author's ambitions to "evaluate" and "analyze," as well as collect, Custer photographs.

Mr. Katz has amassed 155 photographs of George Armstrong Custer....

The text for this impressive collection is virtually nil. The printed matter besides the chronology and photo captions consists of one page of Acknowledgement, Preface, Forward but the Introduction is a page and a half of text. There is also one page of the Custer Service Record.

The Official Service Record of George A. Custer is in the front of the book and a Custer Chronology at the end of the book. This service record is not incorporated into the chronology at the end of the book. One has to flip from the service record in front to the chronology at the end of the book to make it meaningful. There are many mistakes in the chronology.

Seventy-three percent of the photographs are not listed in the chronology. There is no analysis of the photographs (i.e. there are four paragraphs of analysis for the 155 photographs).

Mr. Katz informs the reader of the 36 different photographers who photographed Custer on 72 different occasions. There is no listing of the Custer photographers, so I made my own list and came up with only 25 photographers instead of the 36 as mentioned by the author.

The first photograph K-1 (i.e. K for Katz) set the tone for the book. This is a photo of a young Custer holding a cased image. The caption does not answer the viewer's thought as to who is in the cased image. The description pertaining to this image is in the Introduction and not as part of the caption of the photo. Mr. Katz describes the love struck Custer "resting his head on his right hand." Custer is shown resting his head on his left hand. This might cause confusion to the viewer. Since this is an ambrotype the figure is reversed. This comment should be part of the analysis. This same photo is used as the back photo of the dust cover. This photo has Custer resting his head on his right hand, opposite of the K-1 photo.

The third photo, K-3, has Custer in a West Point cadet uniform with a date one month after he graduated. The caption states he is a cadet lieutenant. Custer is at this time a second lieutenant in the United States Army and would not be wearing a cadet uniform. The uniform in this photo, K-3, is not of a cadet lieutenant but the same one described as a "cadet" in the previous photo, K-2. The K-3 photo being an ambrotype is also reversed and this is not mentioned in the caption.

Some photographs captioned Custer taken by Brady in New York are shown with a Brady Washington imprint and visa versa with no explanation. The dates on some of the photographs as listed are questionable and are not the same date as given in the chronology.

In summation: Mr. Katz has gathered 155 photographs of George Armstrong Custer. This is impressive. His captions and documentation leave much to be desired. There is virtually no analysis or text of the photographs themselves. The scholar cannot use the book with ease for there is no index, footnotes or bibliography. I found too many errors in what has been presented and too many questions unanswered. What Mr. Katz has done is amass 155 Custer photographs.

The complaint alleges that defendant's review, widely published in the United States, was "false and defamatory." Complaint at ¶ 18. The Complaint also states that the review was "published maliciously and with the intent to injure the plaintiff in his profession and to expose plaintiff to public contempt and ridicule." Id. at ¶ 19.¹ Plaintiff claims that defendant published the reviews knowing them to be false, or with reckless disregard of their truthfulness, see id. at ¶ 25, and with "malice and ... an express design to injure the publication of the Book and thereby, the plaintiff himself." Id. at ¶ 23. The plaintiff reads the reviews as containing the innuendo, understood by the public, that "the plaintiff was not qualified as a historian of the works of General Custer." See id. at ¶ 24. Defendant allegedly wrote his reviews with the intention of "getting even" with the plaintiff. Id. at ¶¶ 11, 13.

Defendant's motion for summary judgment rests on the ground that there are no disputed issues of material fact and that "the Review is not reasonably capable of defamatory meaning." Memorandum of Law in Support of Defendant's Motion for Summary Judgment (filed Oct. 17, 1986) ("Defendant's Memorandum") at 4. Defendant claims that the review "makes no reference to the plaintiff's abilities except as author of the book." Id. at 4-5. Defendant also argues that the review is protected by the constitutional privilege of "fair comment" because it "is an expression of pure opinion." Id. at 5. Defendant finally argues that he is protected "by the absolute defense of truth," basing this argument on plaintiff's admission that "there are many errors in the book." Id. at 5.

II.

THE MOTION FOR SUMMARY JUDGMENT

A. The Standard for Summary Judgment

Upon a motion for summary judgment, in libel actions as in others, the court must first determine whether there is a genuine dispute about any issue of material fact See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As recently clarified by the Supreme Court, the standard of materiality requires that "only disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment." 106 S.Ct. at 2510. "... Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). A factual dispute is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and the nonmoving party "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, 106 S.Ct. at 2510; See Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985) (per curiam) (noting that the nonmoving party may not rely upon mere speculation or conjecture as to the true nature of the facts in order to overcome the motion).

B. The Applicable State Law

A court of the United States sitting in diversity jurisdiction must look to the law of the forum state for the rules governing the choice of law. See Klaxon Co. v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). It has been held that a Connecticut court, in an action for defamation by a multi-state publication, would look to the substantive law of the plaintiff's domicile. See Hazlitt v. Fawcett Publications, 116 F.Supp. 538, 539 (D.Conn.1953); Dale System, Inc. v. Time, Inc., 116 F.Supp. 527, 529-30 (D.Conn. 1953).² The parties do not contest the application of the law of Pennsylvania, plaintiff's domicile. See Plaintiff's Supplemental Memorandum of Law (filed April 8, 1987) ("Plaintiffs Supplemental Memorandum") at 2; Supplemental Memorandum of Law in Support of Defendant's Motion for Summary Judgment (filed April 27, 1987) ("Defendant's Supplemental Memorandum") at 1 (not disputing applicability of Pennsylvania law, but stating that "the Review written by the Defendant did not defame the Plaintiff and is not capable of defamatory meaning under Connecticut or Pennsylvania law"). The applicable state law of defamation is, in any event, necessarily constrained by federal constitutional concerns. See Buckley v. Littell, 539 F.2d 882, 888 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977).

C. Standards for Relief

Under Pennsylvania law, "a libel is a maliciously written or printed publication which tends to blacken a person's reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in business or profession." Corabi v. Curtis Publishing Co., 441 Pa. 432, 441, 273 A.2d 899, 904 (1971). Another way of putting the standard is that "a communication is defamatory if it tends so to harm the reputation of another as to lower him in the esteem of the...