Levin v. McPhee

• Decision Date: 17 July 1997
• Docket Number: D,No. 971,971
• Citation: 119 F.3d 189
• Parties: 25 Media L. Rep. 1946 Ilya D. LEVIN, Plaintiff-Appellant, v. John McPHEE; The New Yorker Magazine, Inc., and Farrar, Straus & Giroux, Inc., Defendants-Appellees. ocket 96-7408.
• Court: U.S. Court of Appeals — Second Circuit

Page 189

119 F.3d 189

25 Media L. Rep. 1946

Ilya D. LEVIN, Plaintiff-Appellant, v. John McPHEE; The New Yorker Magazine, Inc., and Farrar Straus & Giroux, Inc., Defendants-Appellees.

No. 971, Docket 96-7408.

United States Court of Appeals, Second Circuit.

Argued Jan. 7, 1997.

Decided July 17, 1997.

Erica B. Raved, UALR School of Law, Little Rock, AR, for Plaintiff-Appellant.

Leon Friedman, New York City, for Defendants-Appellees John McPhee and Farrar, Straus & Giroux, Inc.

Kevin W. Goering, New York City (Christine M. Hoey, Coudert Brothers, New York City; Devereux Chatillon, The New Yorker, New York City, on the brief), for Defendant-Appellee The New Yorker Magazine, Inc.

Before: FEINBERG, NEWMAN, and McLAUGHLIN, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

Libel law frequently calls for careful policing of the line that separates defamatory writings for which an author is properly liable from legitimate explorations of controversial episodes for which a journalist or historian must enjoy insulation from liability. The weighty interests of victims apprehending damaged reputations and of members of the public seeking an opportunity to make up their own minds weigh in the balance. The tension between those interests provides the context in which this appeal arises. The specific issue is whether, in the circumstances of this case, New York libel law permits imposition of liability upon an author who reports conflicting versions of the circumstances underlying a mysterious death and includes two versions that arguably implicate a named person. This issue arises on an appeal by Ilya D. Levin from the March 7, 1996, judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge), granting defendants' motion to dismiss and denying Levin's cross-motion for summary judgment.

Levin's complaint alleged that he had been defamed by the well known writer, John McPhee; Farrar, Straus & Giroux, Inc. ("Farrar"); and The New Yorker Magazine, Inc. ("New Yorker"), publisher of The New Yorker magazine (collectively "defendants"). Levin's allegations stemmed from McPhee's authorship of a book entitled The Ransom of Russian Art, Farrar's publication of the book, and New Yorker's reprint of an excerpt of the book in an article in The New Yorker. Two counts of the complaint alleged defamation, and a third alleged intentional infliction of emotional distress.

Facts

A. The Book

The Ransom of Russian Art (hereinafter "Ransom " or "the book") recounts the story of Norton Dodge, an American, who for a thirty year period beginning in the 1950's, travelled throughout the Soviet Union meeting with and collecting the works of dissident Russian artists. ¹ Dodge smuggled the works out of the former Soviet Union, amassing the world's largest collection of such art at an expense to him of approximately $3,000,000.

One of the artists prominently featured in McPhee's story of Dodge's travels is Evgeny Rukhin, a prolific dissident painter. ² Rukhin helped to arrange some of Dodge's clandestine meetings with other artists, accompanied Dodge on many of those encounters, and contributed much of his own work to Dodge's collection.

Plaintiff Ilya Levin, a writer and himself a former Russian dissident, is credited with helping to found the Leningrad chapter of Amnesty International. See Dissident Pair Can Leave Soviet, Baltimore Sun, June 22, 1977. Currently a resident of Washington, D.C., Levin fled the Soviet Union in 1977 after years of government persecution for his human rights activities and his Jewish identity.

Levin's complaint focuses on a ten-page chapter of McPhee's 181-page book that describes the circumstances surrounding Rukhin's death in a studio fire in Leningrad in 1976. Some facts about the fire, recounted in this chapter, are undisputed. When the fire broke out, Rukhin was in his studio with Levin; Evgeny Esaulenko, a writer; and Ludmila Boblyak ("Ludmila"), Esaulenko's wife. After the fire broke out, Levin and Esaulenko managed to escape; Rukhin and Ludmila were found dead in the studio.

The disputed aspects of Rukhin's death are set forth in eight pages of this chapter that recount interviews McPhee had with five people who knew Rukhin but were not at the scene of the fire. In five separately captioned "versions," each of the five tells McPhee what each believed and/or heard to be the facts concerning Rukhin's death. Levin asserts that the chapter defames him by accusing him of assisting the K.G.B. in Rukhin's murder. Levin also complains that the chapter accuses him of cowardice.

The first section of this chapter, captioned "Dodge's Version," recounts an interview with Dodge in which Dodge " 'imagines' " the details of Rukhin's death. Ransom at 151. The text of the interview conveys Dodge's suspicion that the K.G.B. " 'probably' " burned the studio to teach Rukhin " 'an object lesson,' " unaware that Rukhin was then in the studio. Id. On the day of the fire, however, Rukhin was having a party at his studio with Levin, Esaulenko, and Ludmila. McPhee quotes Dodge as alleging that the fire department " 'held back' " since " 'burning [Rukhin's] place was a warning to all.' " Id. McPhee also attributes to Dodge, without exact quotation, the views

that the death of Rukhin quickly became a story variously told, and with about as many versions as there were tellers, and since it was also a story seemingly known to silent narrators its mystery had been preserved.

Id.

Next, the same chapter recounts a version told by Alexander Melamid, a Russian artist. Melamid, like Dodge, did not witness the fire. In "Melamid's Version," McPhee quotes Melamid as reporting " 'two main versions' " of Rukhin's death: " '(1) K.G.B.' " and " '(2) He lived dangerously.' " Id. In Melamid's words,

"Either God or the K.G.B. punished him. Was it intended that he die? It doesn't matter. Crime and punishment."

Id. at 152.

The third account, "Burke's Version," is attributed to Sarah Burke, an American who is said to have been romantically involved with Rukhin, id. at 136-37, and who was expecting a telephone call from him at the time of the fire, id. at 152. Burke offers three theories: (1) the K.G.B., (2) an accident, or (3) Rukhin's wife. Burke then elaborates on each version, and is quoted as saying:

"The K.G.B. were following his movements pretty carefully. Some people think that Ilya Levin did it for them, that he was 'politically inspired.' It's a possibility.... No one knows where the fire started. Buckets with oily rags in them were always on the stairs. Someone could have thrown a match in. Artists really ran scared after that. Most people believe that the fire was set, but I think it could have been an accident--the studio full of vodka, cigarettes, and the chemically soaked rags. Of the four, two ran. They didn't call the fire department. Esaulenko ran. His wife died. [Rukhin] died.... The other who ran was Ilya Levin. Some people think that [Rukhin's wife] did it, because [Rukhin] meant to leave and come to the United States."

Id. at 152.

The fourth version is told by a person McPhee identifies as "the poet Kuzminsky," id. at 137, a friend of Rukhin's, id. "Kuzminsky's Version" rejects any possibility that the fire was an accident, but concedes that the incident is still a mystery. Id. at 153. Kuzminsky claims to have made a " 'careful investigation.' " Id. After offering a description of the floor plan of Rukhin's studio, Kuzminsky relates that Esaulenko was drinking and dozing in one room of the studio while Levin, Rukhin, and Esaulenko's wife were having sexual intercourse together, " 'sandwich-style' " in another. Id. The fire started in a storage room on the other side of the stairs, blocking the exit immediately. Kuzminsky offers an "imagin[ed]" version of what happened when the K.G.B. entered the studio and encountered the threesome in bed together:

"Maybe Esaulenko opened the door. Maybe they used their own keys. When they came to the last room, seeing the lady intercoursing with two fellows, I know what those K.G.B. prudists would think. They said something nasty. Ludmila attacked them. They hit her. Even if a lady strikes them they answer with a good professional blow. Rukhin defended her. They hit him. Then they set the fire. [Rukhin's wife] says that when they put Rukhin in the ambulance he was alive. They finished him there. Levin and Esaulenko are selfish cowards. They never will protect anybody."

Id. at 154.

The final version is told by Rukhin's wife, Galina, who was at home with her children when she learned about the fire. In "Galina's Version" she recounts that bystanders told her that two men appeared in the studio windows, one holding a purse. The two managed to escape the fire by using a ladder. From the bystanders' description, she knew that one of the two men was Esaulenko. The bystanders told her that that man said that they should wait twenty minutes before calling her. The two men promptly left the scene. At the morgue, Galina identified the body of her husband and that of Esaulenko's wife, Ludmila. Galina immediately suspected that the deaths were not accidental:

Galina went straight to the K.G.B., and said, "I saw him at the morgue. I know he was killed. I saw it in his face."

Id. at 156.

"Galina's Version" explicitly accuses Esaulenko:

Galina went to Ludmila's funeral, in St. Vladimir's Cathedral. Ludmila in her coffin "had a blue face, and black marks on her throat." Galina was startled to see Esaulenko there. "I said to him, 'What are you doing here, murderer?' " After pausing as she tells the story, she adds distractedly, "He left her [Ludmila] but took her purse. He went down the ladder with her purse."

Id. at 157. Galina also states that a doctor and a medical student who examined Rukhin's body later told her that her husband had been murdered by drug injection before the fire. McPhee quotes her as making the following surmise:

"Ludmila probably...