Pauling v. Globe-Democrat Publishing Company

• Citation: 362 F.2d 188
• Decision Date: 21 June 1966
• Docket Number: No. 18082.,18082.
• Parties: Linus PAULING, Appellant, v. GLOBE-DEMOCRAT PUBLISHING COMPANY, a Corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

362 F.2d 188 (1966)

Linus PAULING, Appellant, v. GLOBE-DEMOCRAT PUBLISHING COMPANY, a Corporation, Appellee.

No. 18082.

United States Court of Appeals Eighth Circuit.

June 21, 1966.

Lewis C. Green, of Green, Hennings, Henry & Arnold, St. Louis, Mo., for appellant; John Raeburn Green, Thomas C. Coleman and Alan G. Kimbrell, of Green, Hennings, Henry & Arnold, St. Louis, Mo., on the brief.

Lon Hocker, of Hocker, Goodwin & MacGreevy, St. Louis, Mo., for appellee; Henry S. Stolar, of Hocker, Goodwin & MacGreevy, St. Louis, Mo., on the brief.

Before VOGEL, Chief Judge, and BLACKMUN and GIBSON, Circuit Judges.

BLACKMUN, Circuit Judge.

A jury returned a verdict for the defendant in this diversity civil libel action instituted in September 1961 by Linus Pauling against the corporation which publishes the newspaper known as the St. Louis Globe-Democrat. The plaintiff appeals.

Pauling, for many years a professor of chemistry at the California Institute of Technology, is a man of international repute. His status as a scholar and as a scientist is not questioned. His awards include many honorary degrees, recognition by the United States government for meritorious service during World War II, the 1954 Nobel Prize in Chemistry, and, more recently, the Nobel Peace Prize.

The alleged libel grew out of a controversy over Pauling's efforts to promote a nuclear test ban treaty. The libel is claimed to exist in the following three sentences of the defendant newspaper's editorial, entitled "Glorification of Deceit", published in its issues of October 10, 1960, in respect to an appearance by Pauling before a subcommittee of the United States Senate's Committee on the Judiciary:

"Pauling contemptuously refused to testify and was cited for contempt of Congress. He appealed to the United States District Court to rid him of the contempt citation, which that Court refused to do. The appeal from the lower court\'s affirmation of contempt is expected to be handed down by the Supreme Court today."

The defendant's editorial in its entirety is attached as an appendix to this opinion.

A review of some of the factual background culminating in the challenged editorial may be enlightening:

Prior to 1960 Professor Pauling evinced concern about nuclear testing. In January 1958, he submitted to the United Nations a petition "urging that an international agreement to stop the testing of nuclear bombs be made now". This was prepared and signed by Pauling and had appended to it a list of the names of 9,234 other scientists from throughout the world. An additional list of 1,803 was submitted by him in July. The two lists, with Pauling, made a total of 11,038 names. The original signatures were retained by Pauling and did not accompany the petition.

Also, about this time, the professor and other United States citizens and some non-resident aliens sought, in the United States District Court for the District of Columbia, to enjoin the Secretary of Defense and the Atomic Energy Commission from detonating nuclear weapons. Judge Keech dismissed the complaints on the grounds that they failed to state a justiciable controversy and that none of the plaintiffs had standing to sue. Pauling v. McElroy, 164 F.Supp. 390 (D.D.C. 1958). The Court of Appeals affirmed, 107 U.S.App.D.C. 372, 278 F.2d 252 (1960). The Supreme Court denied certiorari, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed. 2d 60.

Dr. Pauling's efforts in this direction came to be a matter of interest to the Judiciary Committee's Subcommittee on Internal Security. Hearings on his activity were held on June 21 and October 11, 1960. Pauling was subpoenaed and testified on both occasions.¹

At the June 21 hearing the subcommittee manifested a desire to obtain three things from Dr. Pauling: The signatures to the petition; the names of the persons to whom Pauling had written requesting assistance in obtaining signatures; and the letters with which the signatures were transmitted to Pauling. Although he agreed to produce the signatures and a list of the persons to whom he had written for assistance in their collection, he refused a request to supply a list of persons who had transmitted signatures to him. His refusal was essentially on the grounds that this would expose the participants to reprisals and would violate a trust they had reposed in him. At the conclusion of the hearing on June 21 the subcommittee ordered Dr. Pauling to appear on August 9 and to bring with him all signatures to the petition presented to the United Nations and all letters of transmittal with which those signatures came to him. The hearing so scheduled for August 9 was thereafter postponed to October 11.

In the meantime, Pauling instituted an action in the United States District Court for the District of Columbia against Senators Eastland and Dodd (the subcommittee's chairman and vice-chairman respectively), the United States Attorney for the District of Columbia, and the Sergeant-at-Arms of the Senate. In his complaint Pauling alleged that the subcommittee's order of June 21 was violative of his rights under the First and Fourth Amendments and called for the production of papers not pertinent to any lawful inquiry; he expressed willingness, however, to produce the signatures of United States residents who had signed the petition. Pauling requested a declaratory judgment as to his rights and duties with respect to the subcommittee's order and as to its validity. He also sought injunctive relief against enforcement of the order and against his being prosecuted for any failure to comply with it. Judge McGarraghy, on August 23, 1960, granted the defense motion to dismiss. He did so on the grounds that the challenged order was not subject to judicial review in that action; that the plaintiff had an adequate remedy at law in the event of proceedings against him; and that the relief sought would require an unauthorized interference with the legislative branch. Again the Court of Appeals affirmed, Pauling v. Eastland, 109 U.S.App.D.C. 342, 288 F.2d 126 (1960), and the Supreme Court denied certiorari, 364 U.S. 900, 81 S.Ct. 233, 5 L.Ed.2d 194.

While that appeal was pending Pauling advised the Court of Appeals by letter that he was ready to submit the original signatures to the subcommittee. During the pendency of the petition for certiorari a request was made that the subcommittee postpone further hearing until the Supreme Court acted. This request was denied and the second hearing took place on October 11. At that time Dr. Pauling produced the signatures. A week earlier he had sent the subcommittee a list of the persons, about 1200 in number, whose assistance he had requested. He continued to refuse, however, to comply with that part of the order which called for the production of the transmittal letters. He renewed his contention that to do so would subject the participants to reprisals. At the end of the hearing Dr. Pauling was excused from the subpoena.

At this point we note, parenthetically, that Pauling, together with over 100 United States nationals and more than 100 aliens, subsequently instituted still another suit in the United States District Court for the District of Columbia to restrain the Secretary of Defense and the Atomic Energy Commission from detonating any nuclear weapon. This time Judge McLaughlin granted the defense motion to dismiss. He did so on the grounds that the plaintiffs had no standing to sue; that the complaint failed to state a justiciable controversy; that the actions and powers challenged were plainly authorized by law and the Constitution; and that the matter was res judicata by the earlier holding in Pauling v. McElroy, supra. The Court of Appeals, in a vigorous opinion, affirmed and said that the district court "was plainly correct on all points." Pauling v. McNamara, 118 U.S.App.D.C. 50, 331 F.2d 796, 798 (1963). Certiorari was denied, 377 U.S. 933, 12 L.Ed.2d 297.

We now return to the present case. The plaintiff by his complaint asserts that the statements in the editorial's three sentences quoted above were false in that Pauling was not cited for contempt of Congress, in that he did not appeal to any court to rid himself of any contempt citation, and in that no appeal from a court's affirmation of contempt was expected because there had been no such affirmation. Pauling also alleges that the defendant published the quoted statements when it knew or should have known that they were false. He seeks both compensatory and punitive damages.

The defendant newspaper, by its amended answer, admits that Pauling had not been cited for contempt of Congress and had not appealed to any court to rid himself of a contempt citation, and that the editorial's contrary statements "are literally false", but it denies that in "the context in which they appeared they were false in substance and effect." The defendant further alleges "that the gist and thrust" of the publication was that Pauling "was contemptuous of the authority of the Congress of the United States" in that he had contemptuously refused to testify as to the identity of the persons who had helped him collect the petition; that he had unsuccessfully invoked federal judicial power to prevent his being punished for his contemptuous actions; that "the gist and thrust of the publication was and is true"; and as amended at the trial that Pauling "voluntarily sought public expression of his views on national policy and invited public comment thereon".

Pauling's motions for summary judgment and for a directed verdict on the issue of liability were denied. As above noted, the case was submitted to the jury and the jury brought in a general verdict for the defendant.

On this appeal Pauling renews his argument that the defendant is liable as a matter of law and that the trial court should have instructed the jury to that effect and allowed it to pass only on the issue of damages. Pauling also urges error in the instructions, in the admission of...