Loeb v. Globe Newspaper Co.

Citation489 F. Supp. 481
Decision Date01 February 1980
Docket NumberNo. CA72-0897-Z,CA72-1028-Z and CA72-1029-Z.,CA72-0897-Z
PartiesWilliam LOEB v. GLOBE NEWSPAPER CO. James W. ADAMS, Donald C. Anderson, Earl O. Anderson, John F. Barker, Cecile L. Bucknam, John R. Clarey, Charles M. Crockett, O. Richard Cummings, Arthur C. Egan, Jr., Anne Foye, John W. Hammons, Robert D. Hilliard, Louis H. Kuszek, Paul A. Lacaillade, Louis Mandell, Charles W. Margelot, Charles J. McCarthy, Maurice McQuillen, Nancy M. Meersman, Thomas A. Muller, Guy D. Nadeau, George S. Naum, R. Warren Pease, Frederick E. Todd v. GLOBE NEWSPAPER CO. James R. BUCKNAM, James J. Finnegan, Bernard J. McQuaid v. GLOBE NEWSPAPER CO.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Robert Haydock, Jr., Bertram E. Snyder, James F. McHugh, Thomas H. Walsh, Jr., of Bingham, Dana & Gould, Boston, Mass., for Globe Newspaper Co.

James J. Barry, Jr., Stuart M. Van Tine, Ralph Warren Sullivan, of Malloy, Sullivan & Sullivan, Hingham, Mass., for William Loeb, James W. Adams, et al., and James R. Bucknam, et al.

MEMORANDUM OF DECISION

ZOBEL, District Judge.

Plaintiffs in these cases are the publisher (Loeb v. Globe Newspaper Co., CA72-0897), editors (Bucknam v. Globe Newspaper Co. CA72-1029), and other employees (Adams, et al. v. Globe Newspaper Co. CA72-1028) of the Manchester (New Hampshire) Union Leader, a daily newspaper. They claim that the Boston Globe, another daily newspaper, "maligned" and "defamed" them in its editorials and in a syndicated column. The cases are before the court on defendant's motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In each of the actions defendant asserts that no material facts are in issue and that in each it is entitled to judgment as a matter of law.

FACTS

In the winter of 1972, the Manchester Union Leader received nationwide attention for its coverage of the New Hampshire Presidential Primary. During the course of the primary, the publisher of the newspaper engaged in a celebrated exchange with one candidate, and, as appears from the exhibits, the newspaper was dominated by colorful reporting and commentary on the primary, in the course of which the Union Leader itself became a popular topic of media commentary. The newspaper was the subject of at least three pieces in the Boston Globe, and those publications gave rise to the instant claims.

Plaintiffs in Bucknam and Adams, respectively Union Leader editors and staff members, complain of the same statements, both made in an "Opposite the Editorial Page" column in the March 7, 1972 issue of the Boston Globe: that the Union Leader is "probably the worst newspaper in America", and that the publisher of the Union Leader "runs a newspaper by paranoids for paranoids." In Loeb, the publisher of the Union Leader relies on the same statements as well as six others. Loeb includes four excerpts from a March 7, 1972 editorial: that he had been fined three million dollars in a prior legal action, that he "edits his paper like a 19th Century yellow journal", that his views are "venomous" and that his newspaper is a "daily drip of venom". In addition, he complains of a Globe cartoon of March 1, 1972 (attached) in which he is depicted with a cuckoo springing from his forehead. He also complains of a statement in a March 9, 1972 editorial that he "never backed a presidential winner."1 In each of the three claims, plaintiffs argue that the publications were false and derogatory and that professional and social harms resulted from publication.

Bucknam, et al. v. Globe Newspaper Co. CA72-1029-Z
Adams, et al. v. Globe Newspaper Co. CA72-1028-Z

These actions are brought by three Union Leader editors (Bucknam) and twenty-four other employees (Adams), among them office boys, reporters and assistant editors, who claim that two excerpts of a 1972 Globe editorial set out above are false and derogatory statements which libel them.

In support of its motions for summary judgment, defendant argues that the claims are barred as a matter of law because the excerpts in question are not sufficiently specific in their reference to plaintiffs to support tort liability. Defendant is correct.

A "guiding principle" in group libel law2 was not long ago enunciated by the Court of Appeals for the First Circuit thus: "Defamation of a large group gives rise to no civil action on the part of an individual member of the group unless he can show special application of the defamatory matter to himself," Arcand v. Evening Call Pub. Co., 567 F.2d 1163, 1164 (1st Cir. 1977), citing, inter alia, Restatement, Torts, Second, § 564A, Comment a; Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y.1952).

In Adams, the twenty-four plaintiffs represent a small group of employees from the total 325 individuals employed by the Union Leader in March 1972.3 They state without explanation that "the libel was directed at the editorial management and staff", of which they profess to be members, but beyond that assertion venture no support for a claim of the "special application of the defamatory matter to themselves," Arcand v. Evening Call Pub. Co., 567 F.2d at 1164. See also Restatement, Torts (Second) § 564A(b) (plaintiff must show that "the circumstances of publication reasonably give rise to the conclusion that there is particular reference to . . . him"). In Arcand v. Evening Call Pub. Co., supra, the Court supported the predisposition against group libel with the holding of Neiman-Marcus v. Lait, supra, a case very similar on its facts to Adams and Bucknam. In Neiman-Marcus, the Court observed that the "complaint that a group of 382 saleswomen had been generally called prostitutes was dismissed because the group was too large to infer defamation of a member thereof", 567 F.2d at 1164. There is little to distinguish Neiman-Marcus from this case except, possibly, that the insufficiently particular reference to "saleswomen" in Neiman-Marcus was far more specific than either of the general characterizations of the Union Leader. The publication in question does not reasonably give rise to the conclusion that there is "special application", Arcand v. Evening Call Pub. Co., supra, at 1164 or "particular reference", Restatement, Torts, Second, § 564A(b) to these twenty-four office boys, reporters and assistant editors, or to any of them. No tort liability can therefore be held to lie, and with respect to their claim, defendant's motion for summary judgment is allowed.

In Bucknam, three of the Union Leader's eight editors at the time of the alleged libel asserted claims identical to those set forth in Adams.4 The claims differ, presumably, because these plaintiffs are editors, and it may be argued—as an alternative argument to that made in Adams—that the Bucknam plaintiffs would be likelier targets of a general criticism of the newspaper by virtue of their greater authority. Nevertheless, neither pleadings nor affidavits suggest that the Globe text provides a reasonable basis to focus on these three men, and as to these three editors no "special application" or "particular reference" can be reasonably inferred from the general commentary published in the Globe.

Arcand v. Evening Call Pub. Co., supra, defines a "second principle" of group libel, that a cause of action may lie "if a defamatory statement applies to all members of a small group". 567 F.2d at 1164. However, a claim cannot come within this second principle merely by denominating a small subset of a large group of plaintiffs, unless the small group so defined reasonably appears to have been identified by the text. Because no "special application" or "particular reference" to this group of three plaintiffs can be inferred from the Globe text, there can be no claim of defamation of "all members of a small group", Arcand v. Evening Call Pub. Co., 567 F.2d at 1164. Plaintiffs in Bucknam are under the same duty as those in Adams to establish tort liability by supporting "special application" or "particular reference" with respect to the individuals denominated as plaintiffs. Because there is no support for such a claim, and because no particular reference to these plaintiffs can be reasonably inferred from the text, the claim in Bucknam, like that in Adams, is insufficient to give rise to tort liability. Defendant's motion for summary judgment in Bucknam is accordingly allowed.

Loeb v. Globe Newspaper Co. CA72-0897-Z

Plaintiff Loeb, the publisher of the Union Leader, claims that a number of excerpts of Globe columns and a political cartoon amount to actionable libel with respect to him. He correctly observes that he is mentioned by name and that criticisms are unmistakably focused on him. In the case of Loeb, however, unlike the claims of the Union Leader employees, different legal standards apply with respect to defamation, and the balance between a right of action for defamation and the right of editorial freedom is struck with greater deference to the freedom of editorial privilege.

Freedom of editorial expression enjoys the specific protection of the First Amendment. The United States Supreme Court has announced its fundamental importance, see e.g., Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) and has discerned "a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).

In New York Times Co. v. Sullivan, supra, the Supreme Court gave prominence to First Amendment considerations by drawing a broad boundary to describe permissible editorial criticism. That boundary is crossed—and privileged expression becomes actionable defamation—only when criticism or reportage identifies specific subjects, and, if the subject is a public official, only when publication is motivated by "actual malice". Id., 376 U.S. at 279-80; 288, 84 S.Ct. at 725-26; 730. Curtis Publishing Co. v. Butts, 388...

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