Time, Inc. v. Johnston

• Citation: 448 F.2d 378
• Decision Date: 13 September 1971
• Docket Number: 71-1071.,No. 71-1070,71-1070
• Parties: TIME, INC., a New York Corporation, Appellant-Cross-Appellee, v. Neil JOHNSTON, Appellee-Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

448 F.2d 378 (1971)

TIME, INC., a New York Corporation, Appellant-Cross-Appellee, v. Neil JOHNSTON, Appellee-Cross-Appellant.

Nos. 71-1070, 71-1071.

United States Court of Appeals, Fourth Circuit.

Argued May 5, 1971.

Decided September 13, 1971.

Harold R. Medina, Jr., New York City (Egbert L. Haywood, Durham, N. C., W. Dennis Cross, Cravath, Swaine & Moore, New York City, and Haywood, Denny & Miller, Durham, N. C., on the brief) for TIME, Inc.

Roy G. Hall, Jr., and Weston P. Hatfield, Winston-Salem, N. C. (Hatfield, Allman & Hall, Winston-Salem, N. C., on the brief), for Neil Johnston.

Before WINTER, BUTZNER and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The defendant is the publisher of SPORTS ILLUSTRATED, a weekly periodical devoted to sports and athletics. Annually, it features its selection of "Sportsman of the Year". In 1968, it chose Bill Russell, a star on the professional basketball team of the Boston CELTICS, as its "Sportsman of the Year" and engaged George Plimpton, a well-known writer, especially in the field of sports, to write the feature article. In developing his article, Plimpton chose to quote from interviews he had had with persons acquainted with Russell and his exceptional talents as a basketball player. In quoting an interview with Arnold Auerbach, the coach of Russell with the CELTICS, Plimpton included in his article the following paragraph:

"* * * That\'s a word you can use about him — he (Russell) `destroyed\' players. You take Neil Johnston — * * *, Russell destroyed him. He destroyed him psychologically as well, so that he practically ran him out of organized basketball. He blocked so many shots that Johnston began throwing his hook farther and farther from the basket. It was ludicrous, and the guys along the bench began to laugh, maybe in relief that they didn\'t have to worry about such a guy themselves."

The "Johnston" referred to in the quoted paragraph is the plaintiff. At the time of the incident referred to, he was an outstanding professional basketball player with the Philadelphia WARRIORS basketball team. He subsequently retired from professional basketball and is now the assistant basketball coach at Wake Forest University in Winston-Salem, North Carolina. Following the publication of the article, he sued the defendant, contending that he had been libeled in the quoted paragraph and had been "damaged (him) in his chosen profession, that of coaching basketball."

After discovery was completed, both parties moved for summary judgment.¹ The District Court, after argument, denied both motions, 321 F.Supp. 837, and both parties have appealed.

Upon application under Section 1292 (b), 28 U.S.C., this Court granted leave to the parties to take an interlocutory cross-appeal.

We reverse the denial of defendant's motion for summary judgment and dismiss plaintiff's cross-appeal.

The defendant invoked, in support of its motion, the constitutional rule of privilege, granted under the First Amendment, as applied in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and related cases,² to publications relating to the public conduct of public officials or public figures or for publications dealing with either public or private persons involved in matters of legitimate public interest. Specifically, it contends both that the publication in question related to the public conduct of the plaintiff in his character of a public figure and that it fell within the classification of "a matter of legitimate public interest" as enunciated in the recent case of Rosenbloom v. Metromedia, Inc. (1971) 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, decided June 7, 1971. On either ground, it urges it was entitled to the conditional immunity afforded under New York Times.

There can be no dispute that at the time of the events discussed in the challenged publication the plaintiff met the criteria of "a public figure". "Public figures", within the contemplation of the rule in New York Times, as enlarged by subsequent cases, are "those persons who, though not public officials, are `involved in issues in which the public has a justified and important interest'" 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. (9th Cir. 1968) 392 F.2d 417, 419, cert. denied 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110. Consonant with this definition, a college athletic director,³ a basketball coach,⁴ a professional boxer⁵ and a professional baseball player,⁶ among others, have all been held to be "public figures". The plaintiff, as he figures in the challenged publication, fits this definition of a "public figure". Certainly, he was as much a "public figure" as the plaintiff in Cepeda or as the plaintiffs in Grayson and Cohen. He had offered his services to the public as a paid performer and had thereby invited comments on his performance as such. In a sense, he assumed the risk of publicity, good or bad, as the case might be, so far as it concerned his public performance. The publication in question related strictly to his public character. It made no reference to his private life, it involved no intrusion into his private affairs. It dealt entirely with his performance as a professional basketball player; it discussed him in connection with a public event in which the plaintiff as a compensated public figure had taken part voluntarily.

The plaintiff does not seriously question the defendant's premise that he was a "public figure" at the time of the event discussed in the publication; and the District Court apparently assumed in its decision that the plaintiff was such a "public figure". The plaintiff points out, though, that the event, to which the publication related, occurred twelve years before the publication and nine years after the plaintiff had retired as a professional basketball player. It is plaintiff's position that he had, at the time of publication, shed his character of "public figure" and that the New York Times standard was, therefore, inapplicable. This is the basic point of difference between the parties on this aspect of the case. The District Court accepted the plaintiff's view. In so doing, it erred.

The District Court relies for its conclusion primarily on a comment set forth in a note in Rosenblatt v. Baer (1966) 383 U.S. 75, 87, 86 S.Ct. 669, 677, 15 L. Ed.2d 597, note 14: "To be sure, there may be cases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times rule." This, however, is not such a case as was envisaged by Justice Brennan. The claim that plaintiff had retired as a player in 1958, nine years before the publication, is misleading. While plaintiff did retire as a player in 1958, he, by his own affidavit, "remained in organized professional basketball, until 1966." He thus identifies himself with professional basketball up to approximately two years of the publication in question. And, at the time of the publication itself, he was a college basketball coach, still involved as a public figure in basketball. Perhaps as a college basketball coach, he was not as prominently identified with the sport as in his playing days. Neither was Butts as intimately identified with football as an athletic director as he had been as a coach but that did not make him an anachronism in football history any more than the plaintiff, with his outstanding record, had become a forgotten figure among the many devotees of the game of basketball.

That even the plaintiff did not reckon his career as a professional basketball player forgotten is demonstrated by his claim in this case that a reflection on that career and on his eminence as a player damages him in his present occupation as a college basketball coach. By his claim for damages here, he is contending that his standing as a college basketball coach rests substantially on the public recollection and estimation of his former career as a professional basketball player; and it is for that reason he sues. It is because he is still engaged in basketball and because of the effect that any adverse comment on his record and achievements as a basketball star may have on his present position in basketball that he claims damage herein. It is manifestly inconsistent for him to contend that, when his basis for damage is thus grounded, his "public figure" career has become so obscure and remote that it is no longer a subject of legitimate public interest or comment.

The event to which the publication related remained a matter of public interest not simply because of its relation to plaintiff's own public career; it had an equal or greater interest as marking the spectacular debut of Russell in a career that was still phenomenal at the time of the publication. It was an event that had, in the language of one sports writer reporting it, a "tremendous" "psychological effect on the league". It was an event that was vivid in the memory of Auerbach at the time of the publication and likely in that of other followers of the sport. It is fair to assume that in the memory of basketball fans, the event described was neither remote nor forgotten; nor was it devoid of newsworthiness.

Moreover, mere passage of time will not necessarily insulate from the application of New York Times Co. v. Sullivan, publications relating to the past public conduct of a then "public figure". No rule of repose exists to inhibit speech relating to the public career of a public figure so long as newsworthiness and public interest attach to events in such public career. This issue of remoteness as providing a basis for casting a veil about "public figures" in "public events" has often arisen in privacy cases. There are, it is true, distinctions between actions for an...