Levin v. McPhee

• Decision Date: 04 March 1996
• Docket Number: No. 95 Civ. 5179 (LAK).,95 Civ. 5179 (LAK).
• Citation: 917 F. Supp. 230
• Parties: Ilya D. LEVIN, Plaintiff, v. John McPHEE, the New Yorker Magazine, Inc., and Farrar, Straus & Giroux, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

917 F. Supp. 230

Ilya D. LEVIN, Plaintiff, v. John McPHEE, the New Yorker Magazine, Inc., and Farrar, Straus & Giroux, Inc., Defendants.

No. 95 Civ. 5179 (LAK).

United States District Court, S.D. New York.

March 4, 1996.

COPYRIGHT MATERIAL OMITTED

Erica B. Raved, New York City, for Plaintiff.

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

Kevin W. Goering, Christine Hoey, Coudert Brothers, New York City, for Defendant New Yorker Magazine, Inc.

OPINION

KAPLAN, District Judge.

In this action, Ilya D. Levin, plaintiff, contends that he was libeled by statements made in a book entitled THE RANSOM OF RUSSIAN ART, by defendant John McPhee. The book was published by defendant Farrar, Straus & Giroux ("Farrar") and excerpted in an article with the same title published by defendant The New Yorker Magazine, Inc. (the "The New Yorker"). Plaintiff complains that the portions of the book and the article pertaining to the mysterious death of a noted Russian dissident artist, Evgeny Rukhin, charge plaintiff with cowardice and with involvement in causing the deaths of Rukhin and Rukhin's friend, Ludmila Boblyak. Plaintiff contends further that the defendants intentionally inflicted emotional distress upon him by writing and publishing the book and the article. This Court has jurisdiction as a result of the diversity of the parties' citizenship.

The case is now before the Court on the defendants' motion to dismiss the complaint. Defendants urge that the book and the article, each of which presents multiple theories regarding the cause of Rukhin's death, are incapable as a matter of law of the defamatory construction plaintiff gives to them and that the statements complained of are protected expressions of opinion. McPhee and The New Yorker contend further that the complaint should be dismissed as against them because the statements complained of are substantially true and, to the extent that they are not, that they caused plaintiff only incremental harm. McPhee and Farrar contend that they are protected by a privilege of neutral reportage. Plaintiff has cross-moved for summary judgment on the question whether the publications are capable of a defamatory meaning or, in the alternative, for leave to amend.

Facts

John McPhee is a prominent author, described by his counsel as one of the most distinguished figures in American letters. He is said to be the author of twenty-three books, many of which won or were nominated for important literary prizes.¹ Farrar too has played a prominent role in American literature, publishing such world famous authors as Isaac Bashevis Singer, Alexander Solzhenitsyn, William Golding, and Derek Wolcott.

The book at issue in this case, THE RANSOM OF RUSSIAN ART, is an account of the activities of Norton Dodge, a wealthy University of Maryland professor who began traveling to the Soviet Union in the 1950's and who collected dissident art for over thirty years. Over 10,000 works collected by him now are housed and will be exhibited at the Zimmerli Art Museum at Rutgers University. His collection is said to "comprise an irreproduceable archive of the hidden struggle by hundreds of artists across the USSR who defied the proscribed sic style and propagandistic purposes of socialist realism." Jo Ann Lewis, Trove from the Underground: The Maryland Millionaire Who Saved the Art of a Soviet Era, Washington Post, May 14, 1995, at G1.

The book tells the story of Dodge's trips to the Soviet Union, his often clandestine contacts with artists, and the repressive efforts of the Soviet regime. Rukhin, a prolific painter who also played an important role by accompanying Dodge on some of his collecting trips and introducing him to other dissident artists, is one of the artists featured in the book. The nub of this case concerns the book's treatment of Rukhin's death.

The relevant portion of the book appears in a nine page chapter of about 2,000 words.² RANSOM 149-58. The chapter opens with the statement that "Rukhin was burned to death" following his return home to Leningrad from a visit to Moscow. Id. 149. It recounts that Rukhin spent his final night in Moscow at the residence of the Venezuelan ambassador, whom he had met through the wife of the Argentine ambassador, a collector of Rukhin's work. Not long after Rukhin's death, the Soviet government, the book states, gave the Venezuelan ambassador twenty-four hours to leave the Soviet Union and impounded his luggage as he left. Id. 150. After the scene thus is set, there follow five stories or accounts of Rukhin's death, each under a heading attributing it to its source.

The first, labeled "Dodge's Version," purportedly describes how Norton Dodge "imagines the details of Rukhin's death ..." Dodge is quoted as saying that "perhaps the K.G.B. expected him back the next day and therefore thought they would burn out his studio in his absence as an object lesson." It states that plaintiff, Rukhin, Evgeny Esaulenko, and Esaulenko's wife (identified elsewhere as Ludmila Boblyak) were at Rukhin's studio having a party. It notes that Esaulenko's wife also died and accuses the fire department of holding back. It adds that "The K.G.B. probably didn't know he Rukhin was there." And it attributes to Dodge the view that "the death of Rukhin quickly became a story variously told, with about as many versions as there were tellers ..." "Since it was ... a story seemingly known to silent narrators its mystery had been preserved." Id. 151.

The next account is labeled "Melamid's Version" and purports to quote the Moscow artist, Alexander Melamid, as presenting the story of Rukhin's death in pertinent part as follows: "There are two main versions. (1) K.G.B. (2) He lived dangerously. Dangerously? Going to the foreigners drinking. He kept a bohemian image. It sets you free from social bonds. He was the freest man of all of us. It seemed that he had no fear. We all knew that he would pay for this sooner or later. What watched him, God or the K.G.B.? Either God or the K.G.B. punished him. Was it intended that he die? It doesn't matter. Crime and punishment." Id. 151-52 (internal quotations omitted).

The third recounting is entitled "Burke's Version" and is attributed to an American, Sarah Burke, who is said to have been romantically involved with Rukhin and to have been expecting a call from Rukhin around the time of his death. The book states, "Burke outlines what she sees as three possible causes: `(1) The K.G.B. (2) An accident. (3) His wife.'" Id. 152. She is quoted as elaborating on each possibility, in part as follows: "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." Id. She adds that "Most people think 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." She is quoted as saying also that some think that Rukhin's wife, Galina, killed him because Rukhin intended to emigrate to the United States. Id.

Next is "Kuzminsky's Version," which is perhaps the most colorful of the tales. He is quoted at the outset as rejecting the theory that the fire was an accident. Rather, Kuzminsky is quoted as saying that plaintiff, Rukhin, and Ludmila Boblyak, "were making love sandwich-style in room 3 of Rukhin's studio" when the fire started and quickly blocked the exit. Kuzminsky is said to have added that he could imagine "the response of agents from the K.G.B. upon discovering two men closely compressed to either side of Ludmila." "`When they came to the last room,'" Kuzminsky says, "`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. Galia sic 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 nobody.'" Id. 153-54.

The final story, "Galina's Version," is that attributed to Rukhin's wife. Galina was awakened late at night by the police, who told her there had been a fire. Rukhin already was dead. She went to the studio, where a crowd was gathered in the courtyard below. Neighbors reportedly told her that two men appeared in the studio windows during the fire and came down a ladder. When someone asked for Galina's address, one of the men who had come down the ladder, whom Galina reportedly knew or believed was Esaulenko, said "`Don't bother for twenty more minutes. Wait.'" Id. 155. Galina said that she went to the K.G.B. immediately after identifying Rukhin and Boblyak at the morgue. Although the K.G.B. agents "described to her a lewd, orgiastic scene," Galina allegedly responded that she knew that Rukhin had been killed. Id. 156.

Some time later, the book continues, Galina encountered Esaulenko at Boblyak's funeral and accused him of being a murderer. Galina says also that a doctor informed her that there were injection marks on Rukhin's thigh and that a medical student told her that Rukhin was killed by injection before the fire. The book then quotes Galina as saying, "Ludmila probably rebelled and was choked when she refused to cooperate with the murderers," adding that the studio was burned "to cover the murder." Id. 157.

The New Yorker article, insofar as it is relevant here, is a verbatim reproduction of the chapter of RANSOM summarized above, save that it omits the versions attributed to Melamid, Burke and Kuzminsky as well as two final paragraphs of Galina's version, which are not significant to the issues presented by these motions. (First am cpt Ex B)

The Complaint and the Motions

The first amended complaint contains three counts. The first, against McPhee and Farrar, charges that the book...