# Afro-American Publishing Co., Inc. v. Eli Jaffe, T/a Douglas Pharmacy

> Court of Appeals for the D.C. Circuit · August 23, 1966 · 366 F.2d 649

URL: https://www.frixlaw.com/law-library/cases/9452195

## Case

- **Full name:** AFRO-AMERICAN PUBLISHING CO., Inc., Appellant, v. Eli JAFFE, T/A Douglas Pharmacy, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** August 23, 1966
- **Citations:** 366 F.2d 649; 125 U.S. App. D.C. 70; 1966 U.S. App. LEXIS 5128
- **Precedential status:** Published
- **Opinion:** Dissent by Bazelon
- **Judges:** Bazelon, Wright, Fahy, Washington, Danaher, Burger, McGowan, Leventhal
- **Cited by:** 136 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9452195

## How later opinions describe it (automated extraction)

- stating that “defamation turns on whether the communication or publication tends, or is reasonably calculated, to cause harm to another’s reputation, and it is not necessary for plaintiff to prove that this was its actual result”
- explaining that a defamatory statement “must be taken as a whole, and in the sense in which it would be understood by readers to whom it was addressed”
- holding that "defamation turns on whether the communication or publication tends, or is reasonably calculated, to cause harm to another’s reputation.”
- stating that the law of libel protects the interest in reputation which is "inherent in the essential dignity and worth of every human being"

## Opinion text

BAZELON, Chief Judge
(dissenting).
The court is called upon to reconcile two interests of critical importance, freedom of discussion and protection against defamation. In my view, this end is best served here by applying the rule that “erroneous and injurious statements of fact and injurious comment or opinion” regarding a matter of public interest are not actionable libel unless “special damage results.” Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24 , 128 F.2d 457, 458 , cert. denied, 317 U.S. 678 , 63 S.Ct. 160 , 87 L.Ed. 544 (1942). 1 Without such damage, the existence of “malice” whether presumed or “actual” or a finding that the article was libel “per se” 2 should not establish liability. Moreover, “in view of the propensity of juries to award excessive damages for defamation,” 3 spe *665 cial damage should be not only a prerequisite to actionable libel, but also a limitation on the amount recoverable.
In addition to the facts described in the court’s opinion, I rely on the testimony of the article’s author, Mr. Stone, as to how the subject matter appeared to him:
The subject of that article is the total relationship of white and Negroes in America. * * * this is a specific instance in which a white man * * * holding a business in a Negro community, deriving a major share of his income from Negroes, is he himself determining how fast or how militant Negroes should be. He is making this determination by his expression of our headlines and refusing to take the paper based upon his dislike of our headlines, which he regarded as too militant or too aggressive or not to his taste. That is the subject of that article and I thought [it] was of very vital concern to Negroes and whites everywhere.
Appellee denies that his refusal to sell appellant’s newspaper involves a question of public interest. He says that “the general public [had no] legitimate interest whatsoever in the matter of Eli Jaffe, the proprietor of a small neighborhood drug store, cancelling his subscription to a newspaper” and that his action was a “private matter.” But the existence of a public interest question depends “upon the facts as they reasonably appear to the person whose liability is in question.” 4 Personal and narrow commercial interests may in part have motivated Stone’s criticism of Jaffe. But the dispute between Jaffe and the newspaper is so overladen with questions of pressing contemporary importance that I am unwilling to say Stone could not reasonably believe, as he testified, that Jaffe’s actions raised an issue of public interest.
In New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), the Court held that criticism of public officials, containing misstatements of fact, was not actionable libel unless “the statement was made with ‘actual malice’ — that is, witli knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-280 , 84 S.Ct. at 726 . If this rule were to be extended to the present case, appellee would be required to show not only special damage, under Sweeney v. Patterson, supra, but also “actual malice.” I would not apply the New York Times rule here. Although the same policies which support free criticism of public officials also support free discussion of publicly significant issues, private citizens, who like Mr. Jaffe, become embroiled in public controversy may, in some circumstances, warrant greater protection from injurious and false defamation than public officials. I find this protection in requiring such individuals to show only special damage.
The requirement of special damage is not satisfied by the emotional distress alleged here. 5 Otherwise freedom of *666 public discussion would be unduly impaired. I would therefore direct judgment in appellee’s favor.
. This court stated in Sweeney:
“Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable. Information and discussion will be discouraged, and the public interest in public knowledge of important facts will be poorly defended, if error subjects its author to a libel suit without even a showing of economic loss. Whatever is added to the field of libel is taken from the field of free debate.” 76 U.S.App.D.C. at 24 , 128 F.2d at 458 .
That Sweeney is not restricted to criticism of public officials appears from its reliance on the earlier ease of Sullivan v. Meyer, 67 U.S.App.D.C. 228 , 91 F.2d 301 (1937) involving newspaper criticism of a private citizen relating “exclusively to [his] attitude towards a question of public interest.” Sullivan was read to require special damage for liability for such criticism. 76 U.S.App.D.C. at 25 , 128 F.2d at 459 .
In some cases an exception to this rule allows recovery for a false imputation of gross misconduct without special damage, Afro-American Publishing Co. v. Rudbeck, 101 U.S.App.D.C. 333 , 248 F.2d 655 (1957); Pittsburgh Courier Publishing Co. v. Lubore, 91 U.S.App.D.C. 311 , 200 F.2d 355 (1952); Hughes v. Washington Daily News Co., 90 U.S.App.D.C. 155 , 193 F.2d 922 (1952); Curtis Publishing Co. v. Vaughan, 107 U.S.App.D.C. 343 , 278 F.2d 23 (1960). Such charges are not, however, involved in this case. Moreover, this exception should be narrowly restricted to those cases where the extreme character of the alleged libel indicates that some damage must have resulted even though the plaintiff is not able directly to prove it. See Prosser, Law of Torts § 107 at 783 (3d ed. 1964).
. See Prosser, op. cit. supra, § 107 at 782.
. Linn v. Plant Guard Workers, 383 U.S. 53, 64 , 86 S.Ct. 657, 664 , 15 L.Ed.2d 582 (1966).
. Watwood v. Stone’s Mercantile Agency, 90 U.S.App.D.C. 156, 158 , 194 F.2d 160, 161 , 30 A.L.R.2d 772 , cert. denied, 344 U.S. 821 , 73 S.Ct. 18 , 97 L.Ed. 639 (1952) (emphasis supplied), which held that a credit agency could provide information to a subscriber, without forfeiting its qualified privilege regarding libel liability, if it reasonably believed that the subscriber requested the information for a business purpose. The privilege’s purpose there was to foster the commercial “benefits that [credit agency] subscribers derive from frank reports.” IMd. To forfeit the privilege in a particular case on the ground that no commercial benefits would actually be realized by the report, even though the credit agency reasonably believed such benefits would result, would too greatly inhibit the agency generally from giving frank information and would thus defeat the purpose of the privilege. Similarly, a narrow construction of the existence of a public interest question— based, for example, exclusively on the view of the person criticized — would unduly inhibit public discussion and thus defeat the purpose of the rule requiring special damages to support liability.
. This requirement recognizes that, despite the strong need to encourage and protect free discussion of public issues, there may *666 be a remedy for “really serious injury and loss [caused] by false and unfair statements.” Sweeney v. Schenectady Union Pub. Co., 122 F.2d 288, 292 (2d Cir. 1941) (dissenting opinion), affirmed by an equally divided Court, 316 U.S. 642 , 62 S.Ct. 1031 , 86 L.Ed. 1727 (1942). Judge Clark, dissenting, urged the rule later enunciated in this jurisdiction by Sweeney v. Patterson, supra. The Second Circuit’s majority opinion in the Schenectady Union Pub. Co. case rested on its interpretation of New York law, and the Supreme Court’s affirmance did not establish a federal law of libel. But that affirmance must now be read in the light of New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9452195. Public record. Not legal advice.