Rand v. New York Times Co.
| Decision Date | 03 July 1980 |
| Citation | 75 A.D.2d 417,430 N.Y.S.2d 271 |
| Parties | , 6 Media L. Rep. 1692 Steven R. RAND, Plaintiff-Respondent, v. The NEW YORK TIMES COMPANY, a corporation and Stephen E. Rubin, Defendants, and Janis Ian, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joel H. Weinstein, New York City, of counsel (Abeles Clark & Obsterberg, New York City, attorneys) for defendant-appellant.
David S. Weiss, New York City, of counsel (Harry I. Rand, New York City, with him on brief; Botein, Hays, Sklar & Herzberg, New York City, attorneys) for plaintiff-respondent.
Before FEIN, J. P., and SANDLER, SULLIVAN and BLOOM, JJ.
At issue in this libel action is whether the alleged defamation is, as its author contends, an expression of pure opinion and thus not actionable.
Janis Ian is a singer and composer who was interviewed for an article which appeared in the magazine section of the Sunday New York Times on February 15, 1976. The subject of both the interview and the article was Phoebe Snow, also a singer and composer. Plaintiff Steven Rand, the former manager of Snow, alleges that defamatory matter appearing in the article, inter alia, held him up to public contempt, scandal and disgrace, and injured his standing in the entertainment industry and the legal profession, of which he is a member. The material with which plaintiff has taken umbrage is contained in a paragraph that revolved around a quotation from Ian:
She (Phoebe Snow) is also paranoid. "Phoebe's had harder times than anybody I've ever met in terms of now in the business", Janis Ian declares hotly. "Her record company and her manager and her lawyer all screwed her at once." Phoebe herself will not discuss these issues, claiming to be in the midst of a number of expensive and enervating lawsuits. Because of them and what she might be held liable for saying, that singer is awash with secrets and taboo subjects for journalists.
The alleged libel appears in the remark, "Her record company and her manager and her lawyer all screwed her at once." Unmistakably, plaintiff alleges, he is the person designated as "her manager." He has brought this action against Ian as well as the New York Times Company and Stephen Rubin, the publisher and author, respectively, of the article. Neither the Times nor Rubin is a party to this appeal.
At an earlier stage in the litigation, the Times and Rubin moved for dismissal (CPLR § 3211(a)(7).) Special Term (Riccobono, J.), finding the remark quoted in the article actionable as a "mixed opinion", denied the motion. Ian subsequently moved for summary judgment pursuant to CPLR § 3212, claiming that her remark was a constitutionally protected expression of opinion. As part of the moving papers she attached a transcript of the full interview with Rubin, which did not appear in the Times' article and which, because of its relevancy to the issues, we repeat in its entirety:
Ian: She had real hard times.
Rubin: She's had it rough, rough.
Ian: Well, she's probably had a rougher time than anybody I've ever met in the business, you know, in terms of now, in terms of rock n' roll folk, you know, not in terms of Victoria Spivey, but in terms of somebody signing a record contract and getting that f d over, I mean, when your record company and your lawyer and your manager all f you over at once.
Rubin: Surely to talk about it now, I have to guess so.
Rubin: Yea, she's right, and Rolling Stone did a long great piece on her that went on so long about that thing that it's just boring already, but . . .
Ian: Yea.
Rubin: The Times is going to be after my ass to do it, and I don't even have all the details on it.
Ian: You got to understand what happened was, she cut this record, this guy said sign this contract, and she was a jerk, she signed the contract and that's her fault.
Rubin: Umm.
Ian: And then she cut this record and the record was a hit and they put her on the road, but they put her on the, I mean, to take somebody who's never been on the road and put them on the road without a competent road manager, I mean Phoebe was paying the band herself at the end of every week, you know, it's not something, she was doing the plane reservations. It's not something that somebody like her knows how to do in the first place, much less should have to do on the road, and uh, she didn't know which end was up, I mean she had no sound company, she had no light company, they would drive 7-8 hours, now she was making enough bucks on that not to have to drive.
Rubin: Uh huh.
Ian: And they put her out for 50 one-nighters.
Rubin: Yea, she gave me some of that, some of that travelling sounded just like, uh, I was stunned. She was crazy to do it.
Ian: Yea.
Rubin: Yea, but you do it, You do it.
Ian: So, I mean, there was no routing, there wasn't jack § t, you know, and by the end of it, she hated herself, she hated the road, she hated her singing and her songs.
Rubin: And they hated each other, they all hated one another.
Ian: Of course.
Rubin: She said it would be somebody's turn one week and they would all just run.
Ian: Sure, scattered. So, and you know, that's being f d over to me because a manager's job with an artist is to make sure the artist doesn't have to do that kind of stuff.
Rubin: Otherwise there's no reason to have a manager. You can book yourself into plenty of places and,
Ian: Sure, you can sit down and make phone calls.
Rubin: On the phone and make phone calls also.
Ian: Sure, so she got f d over that way . . . ,
Special Term, apparently of the view that the disposition of the earlier Times-Rubin motion was controlling, denied Ian's motion, noting that the only distinction in her statement between the transcript of the interview and as it appeared in the Times' article was the substitution of the euphemism "screwed" for the vulgarism originally used by Ian. In our opinion the legal distinction between Ian's remark as originally rendered and as published, turned not on the substitution of a euphemism but, rather, on the context in which the remark is initially found. As shown by the transcript of the interview, Ian's remark was originally supported, whether fairly or not, by a statement of facts, while, as published, it appears by it self. The failure to note this distinction led Special Term to an erroneous determination which, on this appeal from the denial of Ian's motion, we reverse.
The laws against defamation are designed to prevent the imparting of misinformation about individuals, not the open interchange of ideas. "Under the First Amendment there is no such thing as a false idea." (Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789.) The distinction between a statement of fact and an expression of opinion is that the former can be true or false, while the latter can be neither. (See 1 Harper and James, The Law of Torts, § 5.8, p. 370 (1956).) An "erroneous statement of fact is not worthy of constitutional protection . . . ." (Gertz v. Robert Welch, Inc., supra, 418 U.S. at 342, 94 S.Ct. at 3008.) On the other hand "Opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions, providing that the facts supporting the opinions are set forth." (Rinaldi v. Holt, Rinehart, 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 950, 366 N.E.2d 1299, 1306; see, also, Buckley v. Littell, 539 F.2d 882, 893 (2 Cir.) cert. den. 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777, 3 Restatement of Torts 2d, § 566 (1977).)
Only when the derogatory opinion is a "mixed opinion", that is, it is issued upon a concealed set of facts which the speaker implies would confirm his opinion, is it actionable. (Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2 Cir).) Even then, the action arises not out of an erroneous opinion, but rather upon the false assertion, implied or explicit, that the speaker is privy to certain facts, unknown to his general audience, which are supportive of the opinion and detrimental to the person about whom the opinion is expressed. (See Hotchner v. Castillo-Puche, supra, 551 F.2d at 913.) According to the Restatement, supra, a mixed opinion "is one which, while an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication." (§ 566, comment b at p. 171.) It differs from pure opinion which is "(a) simple expression of opinion based on disclosed or assumed nondefamatory facts. . . ." (3 Restatement of Torts 2d, supra, § 566, comment c at 173.)
Recognizing the impenetrability of the immunity that shelters the factually supported opprobrious opinion, plaintiff argues that the facts stated by Ian, even if true, fail to support her...
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