Rosanova v. Playboy Enterprises, Inc.

• Decision Date: 06 April 1976
• Docket Number: No. CV475-58.,CV475-58.
• Citation: 411 F. Supp. 440
• Parties: Louis F. ROSANOVA, Plaintiff, v. PLAYBOY ENTERPRISES, INC., Defendant.
• Court: U.S. District Court — Southern District of Georgia

411 F. Supp. 440

Louis F. ROSANOVA, Plaintiff, v. PLAYBOY ENTERPRISES, INC., Defendant.

No. CV475-58.

United States District Court, S. D. Georgia, Savannah Division.

April 6, 1976.

Reginald C. Haupt, Jr., Haupt & Thompson, Savannah, Ga., for plaintiff.

Michael L. Shakman, Devoe, Shadur & Krupp, Chicago, Ill., Walter C. Hartridge, Bouhan, Williams & Levy, Savannah, Ga., Peter R. Kolker, Washington, D. C., for defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

LAWRENCE, Chief Judge.

I

The July, 1974, issue of Playboy Magazine contained an article, entitled "Playboy's History of Organized Crime", in which the following paragraph appears:

"Watching Fitzsimmons and Nixon that morning, a California investigator shook his head in dismay. `I can stand crooks,' he said, `but it bothers the hell out of me when a guy meets with mobsters and then with the President.' For in the days prior to the flight, in addition to playing golf, Fitzsimmons had attended a number of interesting meetings. At the Mission Hills Country Club and the Ambassador Hotel in Palm Springs, and then at La Costa, he had been joined in long and secret conversation by a host of California mobsters, including Sam Sciortino, Peter Milano, Joe Lamandri and Lloyd Pitzer, and a crew from Chicago that included Accardo, Marshall Caifano, Charles Greller and Lou Rosanova."

The paragraph appeared in the last segment of a twelve-part series. The controversial excerpt is in that portion of the July, 1974, article dealing with the relationship between various members of "organized crime", the Teamsters Union, its head (Frank Fitzsimmons) and President Richard M. Nixon. In none of the other articles in the series was the name of Mr. Rosanova mentioned.

At the time of the publication Louis F. Rosanova was Executive-Director of the Savannah Inn and Country Club which is owned by the Central States Southeast Southwest Pension Fund of the International Brotherhood of Teamsters. Plaintiff has brought this diversity action against Playboy Enterprises, Inc., alleging that calling him a "mobster" is a false, malicious and defamatory libel per se under Georgia law.¹

Extensive discovery by both sides has preceded Playboy's motion for summary judgment. The defendant contends that no genuine issue of fact exists. It says that Mr. Rosanova occupies the status of a public figure because of his "underworld contacts and involvements" and that the record indisputably shows that the article was published without knowledge of any alleged falsity, and further that there was no reckless disregard for the truth on its part.

II

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the Supreme Court entered the field of state libel law as it bears on First Amendment rights. It held that damages cannot be awarded to a public official for defamatory falsehood relating to official conduct in the absence of proof of "actual malice" or reckless disregard of whether the statement was true or false. Three years later in 1970 the Court in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 extended the constitutional protection afforded by Sullivan to a publisher in libel actions brought by "public officials" to "a public figure" upon a showing of "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." See 388 U.S. at 155, 87 S.Ct. at 1991, 18 L.Ed.2d at 1111.

The following year in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, the highest Court affirmed a ruling by the Third Circuit to the effect that the Sullivan standard was applicable where the plaintiff was not a public figure and that such status was not to be accorded decisive significance. The plurality opinion by Mr. Justice Brennan in Rosenbloom would disregard any distinction between a public official and a public figure, on the one hand, and a private person on the other, if the defamatory statement concerned a matter of general or public interest. Rosenbloom, at 43, 91 S.Ct. at 1819, 29 L.Ed.2d at 311. That theory was jettisoned in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). There the Court wrestled with the standard of liability where a private citizen is defamed by a libelous publication. "Under the plurality opinion" in Rosenbloom, said Mr. Justice Powell, "a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test." Gertz, 418 U.S. at 337, 94 S.Ct. at 3006, 41 L.Ed.2d at 804. A majority of the Court concluded that such an "approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable." "Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general application," said Justice Powell. Gertz, 418 at U.S. 343-344, 94 S.Ct. at 3009, 41 L.Ed.2d at 807.

The Gertz court extended to "public figures" the Sullivan doctrine that a publisher is liable "only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." 418 U.S. at 342, 94 S.Ct. at 3008, 41 L.Ed.2d at 807. Subjective awareness of probable falseness amounts to the same thing. Gertz, at 334, n.6, 94 S.Ct. at 3004, 41 L.Ed.2d at 802. However, in the case of private individuals a less demanding standard was adopted by the Court. As long as a state does not impose liability without fault, it may define for itself the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. Any rule of strict liability that would amount to a guaranty of accuracy of factual assertions is unacceptable. Gertz, at 347, 94 S.Ct. at 3010, 41 L.Ed.2d at 809.² Thus, a negligence standard is established where defamation of a private individual by publication is involved.³

III

How and where do we draw a line between public figures and private individuals? They are nebulous concepts. Defining public figures is much like trying to nail a jellyfish to the wall. Gertz tells us little more than that a private individual is one who "has not accepted public office nor assumed an influential role in ordering society", that is to say, occupies a role of "especial prominence in the affairs of society" or "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." In either event, such persons "invite attention and comment". 418 U.S. at 351, 345, 94 S.Ct. at 3012, 3009, 41 L.Ed.2d at 811, 808.⁴

In its recent decision in Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154, the Supreme Court held that the plaintiff (Mrs. Firestone) was not a "public figure" since she had not assumed any role of "especial prominence in the affairs of society, other than perhaps Palm Beach society." The fact that she held press conferences during a much publicized divorce proceeding was insufficient to make her such a figure for the purpose of determining the constitutional protection afforded Time's report of the factual and legal basis for the divorce.

The term "public figures" has been defined as "those persons" who, though not public officials, are "involved in issues in which the public has a justified and important interest." Such figures are, of course, numerous and "include artists, athletes, business people, dilettantes, anyone who is famous or infamous because of who he is or what he has done." Cepeda v. Cowles Magazines and Broadcasting, Inc., 392 F.2d 417, 419 (9th Cir.), cert. den. 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110.

Whether a matter is of public or general concern is a question of law for the court. Walker v. Colorado Springs Sun, Inc. (Sup.Ct.Colo.), 538 P.2d 450, 459. "It is for the trial judge in the first instance to determine whether the proofs show plaintiff to be a `public official.'" Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597, 606. Similarly, while "the issue of whether a plaintiff in a defamation action is a public figure poses a mixed question of law and fact, it is nevertheless one for the Court, not the jury, to determine." Hotchner v. Castillo-Puche, 404 F.Supp. 1041, 1045 (S.D., N.Y.).

Viewed in the crepuscule of judicial definement, was Mr. Rosanova a "public figure" because of the alleged involvements and contacts that gave rise to the defamation?

IV

Defendant contends that Mr. Rosanova is a public figure for the purposes of the article for three reasons: (1) Extensive contacts over a period of years with underworld figures and criminal prosecutions; (2) Substantial and sustained publicity in relation to his alleged underworld ties; (3) Long-standing relationship with Teamsters President Frank Fitzsimmons and involvement in Teamsters' business.

Mr. Rosanova acknowledges that in 1963 he was identified as a member of organized crime in a chart prepared by the staff at a United States Senate Committee investigating that subject. It referred to him as a member of the "Chicago-Italian Organization". Plaintiff admits that he was socially acquainted with many of the persons listed on the chart and on a good-friend basis with others. His contact in many instances grew out of his business connection with two golf clubs in the Chicago area which defendant contends were recognized as gathering places for "underworld" figures.

Mr. Rosanova has been the subject of governmental investigations and criminal prosecutions. He has never been convicted of any crime, however, He conceded in his deposition that "rap sheets" are kept on him by FBI as well as by the States of Illinois, California, Florida and...