Rinaldi v. Village Voice, Inc.
| Decision Date | 11 March 1975 |
| Citation | 47 A.D.2d 180,365 N.Y.S.2d 199 |
| Parties | Dominic S. RINALDI, Plaintiff-Respondent, v. The VILLAGE VOICE, INC., and Scali, McCabe, Sloves, Inc., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Victor A. Kovner, New York City, of counsel (Nathaniel J. Bickford, New York City, with him on the brief; Lankenau, Kovner, Bickford & Beer, New York City, attys.), for defendant-appellant The Village Voice, Inc.
Steven Finell, New York City, of counsel (Paul J. Newlon, New York City, with him on the brief, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, attys.), for defendant-appellant Scali, McCabe, Sloves, Inc.
Irwin N. Wilpon, Brooklyn, for plaintiff-respondent.
Before STEVENS, J.P., and MARKEWICH, CAPOZZOLI, NUNEZ and YESAWICH, JJ.
Defendants appeal from an order of Special Term granting plaintiff's motion to dismiss defendants' affirmative defenses and denying defendants' cross-motion for summary judgment. Defendant The Village Voice, Inc., publishes a newspaper called 'The Village Voice'. In its newspaper it published four articles between August 31, and November 30, 1972, which were highly critical of the plaintiff's performance of his duties as a judicial officer. It is not these articles, however, which are the gravamen for this action. On February 25, 1973, defendants caused an advertisement to be printed in the New York Times. The advertisement was composed by defendant Scali, McCabe, Sloves, Inc., a professional advertising agency. This advertisement referred to the articles about plaintiff in sufficient detail and in such a manner that there can be no question that if the statements made were not accurate and if the defendant enjoyed no privilege, the advertisement would support a cause of action for libel.
Defendants urge that under the doctrine of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, there is no issue as to their privilege. For two reasons we do not agree.
It is correct that Sullivan concerned a paid advertisement and the cloak of the First Amendment was nevertheless applied. But the court was careful to point out (at p. 266 et seq., 84 S.Ct. 710) the nature of the particular advertisement involved. It was not a commercial advertisement designed to sell a product. On the contrary, it sought financial support for a movement of great public interest and concern, and the court pointed out that the advertiser was doing what a newspaper could do--exercising its freedom of speech. Not owning a newspaper, the advertiser could not state its views in the editorial section of a paper and so was relegated to a paid advertisement. Advertisements of this kind the court styled 'editorial advertisements', and it is advertisements of like kind only that are protected by the constitutional amendment.
The advertisement in suit here was designed solely to sell The Village Voice, the product of the defendant advertiser, the composer of the...
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