Schermerhorn v. Rosenberg
| Decision Date | 17 March 1980 |
| Citation | 73 A.D.2d 276,426 N.Y.S.2d 274 |
| Parties | , 6 Media L. Rep. 1376 Richard E. SCHERMERHORN, Respondent, v. Ron ROSENBERG et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Becker, Card, Levy & Richards, P. C., Endicott (Rodney A. Richards, Endicott, of counsel, Bruce O. Becker, Endicott, on the brief), for appellants.
Finkelstein, Mauriello, Kaplan & Levine, P. C., Newburgh (Howard Karger, Newburgh, of counsel), for respondent.
Before MOLLEN, P. J., and HOPKINS, DAMIANI, TITONE and MANGANO, JJ.
In this action for libel and slander, we are again called upon to strike a balance between the constitutional requirement that freedom of expression be afforded its necessary "breathing space" and the right of a public official to protect his good name against false and defamatory publications. What separates this case from the ordinary, however, is the finding, implicit in the jury's verdict, that the defendants not only published the defamatory matter, they fabricated it. Also presented are questions concerning principles applicable to an action for defamation based solely upon the allegedly libelous headline of an otherwise fair and accurate newspaper article.
Plaintiff Richard E. Schermerhorn is a New York State Senator who, since 1970, has represented what is now the 40th Senatorial District. In March, 1973 he proposed a bill to establish a public benefit development corporation to finance the redevelopment of portions of the City of Newburgh. The corporation, to be known as the Newburgh Development District Corporation, or NDDC, was to issue $50,000,000 in moral obligation bonds to finance the reconstruction.
It soon became evident, however, that the proposal was causing serious concern in Newburgh's black and Hispanic communities which had suffered inordinate disruption and dislocation during earlier attempts at urban renewal in the city. It was apparently feared that the new bill would not provide adequately for relocation of displaced families and would also result in the dilution of minority voting strength. In an attempt to prevent those consequences, efforts were begun to assure community representation on the board of directors of the proposed NDDC, and those efforts became a subject of inquiry by the defendant Times Herald Record, a Middletown newspaper published by the defendant Orange County Division of Ottaway Newspapers, Inc. As a result, the paper assigned several reporters, including defendant Ron Rosenberg, to cover the potential impact of the bill on the minority community.
As part of his investigation, Rosenberg telephoned Senator Schermerhorn at his home to obtain his views as to the composition of the NDDC's board of directors. The Senator willingly discussed his proposal at length with the reporter, and as demonstrated by their trial testimony, both parties have substantially similar recollections of the content of the interview.
Rosenberg informed the Senator that a number of black leaders were insisting that the bill be amended to guarantee black and Hispanic representation on the board of directors. Schermerhorn replied that only the Mayor would have the power to select the board members and that, in any event, any guarantee of appointments based upon race would probably be unconstitutional. The Senator added that it was his hope that those selected would be the best qualified, regardless of color, and would be willing to serve the City without expectation of social, political or economic gain. He especially stressed the need for those with training and experience in financing since that was to be the essence of the NDDC's function. According to Rosenberg, when told of the explicit demands for minority representation, Schermerhorn replied, 1
On April 2, 1973 the Times Herald carried an article by Rosenberg recounting his interview with Senator Schermerhorn. The headline under which that article appeared read:
"SCHERMERHORN SAYS NDDC CAN DO WITHOUT BLACKS".
The reaction was not long in coming. Local leaders of the black community expressed outrage and immediately sought the assistance of Sidney von Luther and Vander L. Beatty, two State Senators who were viewed as prominent leaders of New York State's black community. On the same day the article appeared officials of Newburgh's chapter of the NAACP traveled to Albany to confer with the Senators and, thereafter, a telephone call was placed to Rosenberg seeking further details of his interview with Senator Schermerhorn. This call would prove crucial to the events that followed.
The next day, April 3, 1973, Senator Schermerhorn became the target of the first resolution in the history of the New York State Senate to call for the censure of a Senator. The resolution, proposed by Senators Beatty and von Luther, accused Schermerhorn of having "made in public certain derogatory statements against the black community" and of having used "his position as a member of the legislature to promote and further his campaign of vilification of members of the black race." The introduction of this resolution was reported in an article appearing in the Times Herald on April 4, 1973, under the headline, "TWO STATE SENATORS CALL FOR SCHERMERHORN'S CENSURE". This article, written by reporter Humphrey Tyler, concluded with the following paragraph relating to statements made by Senator Beatty to the press:
On April 12, 1973 the Times Herald ran an article concerning the Senate debate on the Schermerhorn NDDC bill. The paper reported that the proceedings were "laced with pointed racial overtones" and that the Times Herald headline, "SCHERMERHORN SAYS NDDC CAN DO WITHOUT BLACKS", had been read three times on the floor of the Senate in the course of the debate.
Meanwhile, Senator Schermerhorn was attempting to defend himself against the accusations. Immediately after the publication of the article of April 2, he informed the editors of the Times Herald that he had never made the remark attributed to him in the headline and he unsuccessfully demanded a retraction. Following publication of the charge that he had been recorded making racial and ethnic slurs, Senator Schermerhorn tried to assure his colleagues that the accusation was untrue. He agreed that if there were tapes showing otherwise, he would be unfit to serve in the Senate and would resign. 2
Ultimately, as a result of the controversy, Senator Schermerhorn instituted this action for libel and slander. Significantly, both Senator Beatty and Senator von Luther, who had led the vitriolic campaign against him in the Senate, testified at the trial in his behalf. They explained that their actions had been precipitated both by the April 2 headline and by the telephone conversation they had had with defendant Rosenberg. Both Senators agreed that the reporter had given assurances that Schermerhorn in fact said that the NDDC could do without blacks. According to von Luther, Rosenberg said that Schermerhorn was a "racist bastard" who had told him that Newburgh did not need "niggers" and could also do without Jews and Puerto Ricans. Asked why he had not reported Schermerhorn's use of the word "nigger", Rosenberg replied that he had not wanted to exacerbate feelings and thought that the article was vulgar enough.
Von Luther testified further that during the conversation Rosenberg was very eager to learn the Senators' reaction to Schermerhorn's comments and inquired as to what action they would now take against him. When von Luther suggested that he might move for Schermerhorn's censure and ultimately for his impeachment, Rosenberg volunteered that he had recorded his interview with Schermerhorn and was in possession of a tape of the Senator making racial and ethnic slurs in the course of the conversation. Rosenberg offered the tape to von Luther who accepted the offer believing that the recording would provide the irrefutable evidence needed to support Senator Schermerhorn's ouster.
Senator Beatty's recollection was somewhat less clear. He testified that he was uncertain as to whether Rosenberg or Humphrey Tyler, the other reporter, had first mentioned and offered him the tapes, although he believed it had been Tyler. In any event, Beatty was certain that one of the reporters had assured him of the existence of recordings and it was these to which he had referred in the interview quoted by the paper in its article of April 4, 1973.
Both Rosenberg and Tyler testified at trial, and each denied having been the source of information regarding tapes damaging to Schermerhorn. Rosenberg admitted, however, that after his telephone conversation with Beatty and von Luther he had been left with the distinct impression that they thought he had such tapes. He could offer no explanation as to why the Senators might have formed such a belief. Tyler testified that, upon hearing Beatty mention tapes, he called Rosenberg to ask about them this although Senator Beatty had never specified who had made the recordings or who was then in possession of them.
In any event, the Senators were never provided with the promised tapes although they made repeated requests for them. Finally, von Luther and Beatty arrived at the conclusion which was later conceded by all sides at trial: No tape recording had been made of Rosenberg's interview with Schermerhorn;...
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