Quinn v. Aetna Life and Cas. Co.

• Decision Date: 05 July 1978
• Citation: 409 N.Y.S.2d 473,96 Misc.2d 545
• Parties: , 4 Media L. Rep. 1049 Dorothy QUINN, Jacqueline Marchese and Nina Assejew, Plaintiffs, v. AETNA LIFE AND CASUALTY CO., Nym Corporation d/b/a New York Magazine, and Newsweek, Inc. d/b/a Newsweek Magazine, Defendants.
• Court: New York Supreme Court

Page 473

409 N.Y.S.2d 473

96 Misc.2d 545, 4 Media L. Rep. 1049

Dorothy QUINN, Jacqueline Marchese and Nina Assejew, Plaintiffs, v. AETNA LIFE AND CASUALTY CO., Nym Corporation d/b/a New York

Magazine, and Newsweek, Inc. d/b/a Newsweek

Magazine, Defendants.

Supreme Court, Queens County.

July 5, 1978.

Baron & Vesel, Forest Hills, for plaintiffs.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant Aetna Life and Cas. Co.

Squadron, Ellendorf, Plesent & Leher, New York City, for defendant NYM Corp.

Rogers & Wells, New York City, for defendant Newsweek, Inc.

ANGELO GRACI, Justice.

In this action for a permanent injunction, plaintiffs move for a preliminary injunction to restrain the defendants from publishing or causing to be published certain advertising copy on the ground that said copy is calculated to influence potential jurors, thereby depriving the plaintiffs of their constitutional right to an impartial jury. Defendants cross-move for an order dismissing the complaint, on the grounds that the complaint fails to state a cause of action and that the action is barred by the First Amendment of the United States Constitution and article I, section 8, of the New York Constitution.

Plaintiffs are three women, each of whom is also a plaintiff in a personal injury action arising out of an automobile accident. Their actions are now pending in the Supreme Courts of Kings, Nassau and Queens Counties, and it is alleged that each of the actions is to be tried before a jury.

In the instant action, the plaintiffs are seeking to enjoin the publication of two advertisements, entitled "Too Bad Judges Can't Read This To A Jury" and "And Now The Big Winners in Today's Lawsuits", submitted for publication by defendant Aetna Life and Casualty Co. and published by defendants NYM Corp. and Newsweek Inc. in the magazines "New York" and "Newsweek" respectively.

The thrust of these advertisements is that the damages awarded in personal injury actions are assuming astronomical proportions, often unrelated to the actual extent of the injury incurred. More specifically, these advertisements include such contested language as:

"Every payer of liability insurance premiums is a loser."

"The jury is cautioned * * * to bear in mind that money doesn't grow on trees. It must be paid through insurance premiums from uninvolved parties such as yourselves."

"We can ask juries to take into account a victim's own responsibility for his losses."

"Insurers, lawyers, judges each of us shares blame for this mess. But it is you, the public, who can best begin to clean it up."

The defendants contend that as the intent of the advertisements is merely to advocate tort law reform, the "speech" at issue is "political expression" and fully protected by the First Amendment. Defendants NYM Corp. and Newsweek Inc. add that since a newspaper is merely a passive receptacle for advertising, as to them a prior restraint is that much more difficult to sustain.

Plaintiffs allege that the language in question constitutes both jury tampering, violative of section 215.25 of the Penal Law and misleading advertising, violative of section 350-a of the General Business Law and that, as such, the expression is beyond the protection of the First Amendment. In addition, the plaintiffs argue that the continued publication of these advertisements constitutes a "clear and present danger" to their ability to obtain an impartial jury and that no adequate remedy exists at law.

The question presented then is whether the language of the advertisements is protected by the constitutional guarantees of the First Amendment, thus barring the plaintiffs' cause of action.

Throughout the long line of First Amendment cases, the Supreme Court has premised its holdings on the general proposition that free speech and a free press are fundamental to the American democratic system in that, by keeping the public informed, they guard against governmental abuses. Thus, in New York Times Co. v. Sullivan, 376 U.S. 254, 269, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, it held that:

"(t)he general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. * * * we consider this case against the background of a Profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open * * *." (Emphasis supplied.)

In accordance with this "profound commitment" to open debate, the court has been reluctant to impose a limitation on what the press may publish, particularly where the limitation sought is in the form of a prior restraint. Such prior restraints have been said to come before the court with a "heavy presumption" against their constitutional validity. (Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1; Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683.)

While there is a "heavy presumption" of constitutionality in support of defendants' conduct, and particularly defendant members of the press, the Supreme Court in its free speech and press cases has never gone so far as to hold injunctive relief absolutely impermissible. On the contrary, there are certain areas wherein it has been held permissible to regulate the content of speech, such as cases involving obscenity of the advocating of the overthrow of the government. (See, e. g., Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448; United States v. Dennis, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.) Similarly, statutes which reasonably regulate the time, manner and place of speech have been upheld. As was pointed out in the article "Supreme Court and the Right of Free Speech" 11 L.Ed.2d 1116, 1121:

"legitimate attempts to protect the public * * * from present excesses of direct, active conduct, are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights * * *."

It cannot, therefore, be held that it is prima facie unconstitutional for this court to regulate or restrain expression, particularly as the dividing line between speech which is protected and that which is not is far from clear-cut. This court must consider that while free press cases arguably protect defendants NYM Corp. and Newsweek Inc. in the exercise of their editorial discretion as to what advertisements to print, these same cases do not necessarily afford the same extent and degree of protection to defendant Aetna as a mere advertiser. The contested expression, by reason of its very content, may not in fact be protected by the First Amendment, or the free press cases which interpret and apply this right.

In many of its decisions, when faced with First Amendment arguments, the Supreme Court employed a balancing mechanism, weighing the protections afforded by the First Amendment against the other constitutional rights, in an effort to maximize freedom of speech and press without detriment to other valid guarantees. (See, e. g., Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569). More specifically, in a case such as this, where there is an alleged abridgement of the right to an impartial jury, such a balancing of rights and weighing of surrounding circumstances becomes imperative. Thus, it may be that the language, despite its protection, has so far imposed on the plaintiffs' right to an impartial jury as to warrant the restriction of said language.

A. Commercial Speech

In the early case of Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, the Supreme Court held that expression for the primary purpose of commercial gain was beyond the ambit of the First Amendment. As cases arose subsequent to Valentine, however, it became increasingly difficult for the court to fashion a test which would effectively distinguish between commercial and noncommercial speech, so as to permit the latter the First Amendment protections which were denied to the former. The holding of Valentine became particularly difficult to apply in those cases where commercial speech had noncommercial aspects and vice versa.

Thus, in New York Times Co. v. Sullivan (376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686), the court held that political advertisements were within the First Amendment guarantees and did not lose their protection merely because they appeared in a commercial context. The court distinguished the advertisement in Sullivan from that in Valentine On the basis that it was not "commercial" but rather that:

"(i)t communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are Matters of the highest public interest and concern." (376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (Emphasis supplied).)

The effect of this holding was to narrow the gap between commercial and noncommercial speech, in terms of their treatment under the First Amendment, by indicating that the speech must tout a "private" rather than "public" interest before it can be found to lose its protected status. Despite this narrowing, however, it was held in Rowan v. United States Post Office, 300 F.Supp. 1036, aff'd. 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736, that commercial advertising may be reasonably regulated without offending the First Amendment.

Thereafter, an injunction was sustained on the basis that commercial expression could be legitimately regulated by the state. (Pittsburgh Press Co. v. Human Relations Comm., 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669.) In that case, the court suggested that any protection arguably offered the advertisements under the Sullivan holding was vitiated by the fact that the commercial activity was illegal and "the restriction on advertising is incidental to a valid limitation on economic activity." (Pittsburgh Press Co. v. Human...