Spanel v. Pegler
Citation | 160 F.2d 619 |
Decision Date | 06 March 1947 |
Docket Number | No. 9128.,9128. |
Parties | SPANEL et al. v. PEGLER et al. |
Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Max Swiren, Ben W. Heineman, and Joseph D. Block, all of Chicago, Ill. (Swiren Heineman & Antonow, of Chicago, Ill., of counsel), for appellants.
Floyd E. Thompson, of Chicago, Ill., for appellees.
Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
Plaintiffs brought this action for libel against defendants who were responsible for the inception and publication of the alleged libelous article which appeared in a Chicago evening newspaper. Diversity of citizenship and the requisite amount in controversy resolved the question of jurisdiction. Defendant Pegler was not served, and the remaining two defendants, who were served and appeared, joined in a motion to dismiss the amended complaint on the grounds of failure to state a cause of action. The court sustained their motion, and plaintiffs have appealed.
The amended complaint alleged that plaintiff Spanel was the president of International Latex Corporation; that he was not, nor is he now, a Communist, either in sympathy or political belief; that about March 15, 1945, the defendants — the Illinois Publishing and Printing Co., publisher of the newspaper "The Chicago Herald-American," and King Features Syndicate, the distributor of Pegler's column — published in "The Chicago Herald-American" the alleged defamatory article. The complaint further alleged that "By virtue of the writing and publication of such false, scandalous, malicious and defamatory libel, the defendants and each of them did mean and * * * were understood as meaning that the plaintiff Spanel was and is a Communist or a so-called `fellow-traveler' or adherent to, or sympathizer with, the principles, preachments and objectives of Communists or Communism." The same article was published in approximately 180 newspapers throughout the United States by means of the service provided by King Features, for which additional damages were sought.
The article in question, which was made part of the complaint, omitting portions, is hereby set out:
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The complaint further alleged that for a long time prior, to March 15, 1945, there existed throughout the United States persons called Communists and that it was commonly believed that Communists and their sympathizers, adherents and so-called "fellow-travelers" were persons who were not attached to and did not give primary allegiance to the Constitution or the Government of the United States, but were persons who sought unlawfully and by force and violence or trickery to overthrow the Government of the United States.
The question is whether the complaint states a cause of action. Defendants' position is predicated upon two major premises: first, that it is not libelous per se to write of any one that he is a Communist or that he is sympathetic toward Communism; secondly, there are no facts alleged in the complaint which show that the statements made in the alleged libelous article are unreasonable editorial comment or are false.
In Illinois, whose law is controlling in this case, written or printed words are libelous per se "`if they tend to expose plaintiff to public hatred, contempt, ridicule, aversion or disgrace, and to induce an evil opinion of him in the minds of right thinking persons. * * *'" White v. Bourquin, 204 Ill.App. 83, 94, and cases cited. While this is a standard definition of libel per se, two questions present themselves for our consideration and a negative answer to either one precludes plaintiffs' case.
(1) Is it libelous per se to write of a person that he is a Communist or a Communist sympathizer?
(2) If it is, has a question been presented to be determined by the jury in that the alleged offending article1 is reasonably susceptible of being understood by ordinary readers as conveying this meaning?
Through their courts, sister states have held that it is libelous per se to characterize a person as a Communist or a Communist sympathizer.2 Levy v. Gelber, 175 Misc. 746, 25 N.Y.S.2d 148; Toomey v. Jones, 124 Okl. 167, 254 P. 736, 51 A.L.R. 1066; Gallagher v. Chavalas, 48 Cal.App. 2d 52, 119 P.2d 408. Illinois courts have never been called upon to pass directly on this question, but in Cerveny v. Chicago Daily News Co., 139 Ill. 345, 28 N.E. 692, 13 L.R.A. 864, and in Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587, the court passed upon charges quite similar to those published in this case.
In the Cerveny case, the characterization of plaintiff as an anarchist in a publication of defendant's newspaper was held to be actionable and libelous per se. In the Ogren case, the defendant newspaper asserted that plaintiff was a socialist and a rebel against the prevailing economic system. The court held this to be libelous per se. Recently, this court had occasion to interpret the law of Illinois regarding libel and held that published words reflecting on one's patriotism are libelous per se whether they be directed at a person or a corporation. Pullman Standard Car Mfg. Co. v. Local Union No. 2928, 7 Cir., 152 F.2d 493, 496.
A reading of these cases forces us to the conclusion that in Illinois it is libelous per se to write of a man or a corporation that they are Communists or Communist sympathizers, because the label of "Communist" today in the minds of many average and respectable persons places the accused beyond the pale of respectability and makes him a symbol of public hatred, in violation of the statute. Ill.Rev.Stat.1945, c. 38 § 402. It has long been established that there need not be universal hatred as a result of a falsehood. It is sufficient if a fraction of those informed view the plaintiffs with contempt. Peck v. Tribune Co., 214 U.S. 185, 190, 29 S.Ct. 554, 53 L.Ed. 960, 16 Ann.Cas. 1075.
Defendants argue that the word Communist has no definite meaning; that it is merely the expression of an opinion which if held actionable per se is to eliminate its use from political discussions. Concededly, the word is carelessly and perhaps indefinitely used today. Nevertheless, there can be no denial that its appearance as a characterization in a newspaper political editorial is sufficient to destroy a person's presumably good reputation with the public. And it seems anomalous for defendants to make such a contention, because newspaper publishers, generally, as molders of public opinion, have created the ogre which defendants here seek to characterize as innoxious. Even if these views may soon be altered and are in truth only the mores of the times, they must be respected as criteria. If it were libelous per se in 1889 to write of a man as an anarchist (Cerveny case) and libelous per se in 1915 to write of a man as a socialist (Ogren case) it is libelous per se in 1945 to write of a man as a Communist.
In attempting to answer the question whether the alleged libelous article presents a factual issue to be determined by the jury we are guided by the rule "that an alleged libelous publication must be interpreted in the sense in which...
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