Coleman v. Newark Morning Ledger Co.

Weinthaub, C. J.

(dissenting in part). I agree with the result reached with respect to the second count, but dissent as to the first count for two reasons: (1) there is no privilege to report a secret proceeding, and (2) the imputation of corruption or crime is beyond “fair comment.”

The Constitution of the United States provides an absolute privilege for members of the Congress with respect to “any *387 Speech or Debate in either House.” Art. I, § 6. The immunity extends to committee proceedings. Tenney v. Brandhove, 341 U. S. 367 , 71 S. Ct. 783 , 95 L. Ed. 1019 (1951). Our State Constitution of 1844 contained language equivalent to the federal provision, Art. IY, § 4, par. 8, and the Constitution of 1947 expressly extends the immunity to “any meeting of a legislative committee.” Art. IY, § 4, par. 9.

I do not understand the majority to find an absolute privilege beyond the precincts of the House and committee room. Such expressions as exist deny the privilege beyond those premises. Long v. Ansell, 63 App. D. C. 68, 69 F. 2d 386 , 94 A. L. R. 1466 (D. C. Ct. App. 1934), affirmed on other grounds, 293 U. S. 76 , 55 S. Ct. 21 , 79 L. Ed. 208 (1934); Coffin v. Coffin, 4 Mass. 1 , 3 Am. Dec. 189 (Sup. Jud. Ct. 1808); The King v. Creevy, 1 M. & S. 273, 105 Eng. Rep. 102 (K. B. 1813). The soundness of that proposition appears to have been assumed in Cole v. Richards, 108 N. J. L. 356 (E. & A. 1932). The reason for the immunity, to assure courageous and unfettered attention to the business of the legislative branch, is fully served by an immunity thus localized, and I see no need to expand it. With respect to the parallel immunity in judicial proceedings, we have denied a privilege to report the remarks of a prosecutor made other than in the course of such proceedings. Rogers v. Courier Post Co., 2 N. J. 393, 402 (1949).

The statements by Senator McCarthy were made at a press conference after the close of a secret session of the subcommittee. I understand the majority find he had a qualified privilege to relate what had happened behind closed doors. I will assume his course was authorized by the committee, notwithstanding the vagueness of the Senator’s testimony in that regard. Nonetheless, no statute, state or federal, purports to confer an immunity in those circumstances. If the privilege exists, it must be founded upon case law. I know of no decision carving such an exception from the general liability to respond for defamation, and although I do not question the judicial power to innovate the privilege, I find no justification for it.

*388 The fact that the session was secret is, in my view, sufficient to deny a privilege. See Danziger v. Hearst Corporation, 304 N. Y. 244 , 107 N. E. 2d 62 (Ct. App. 1952). The rationale of the privilege of the press to report is that the members of the public could have acquired the same information by personal attendance. The secret nature of the hearing negates the reason for the privilege. Moreover, the essential qualification of the privilege is that the report be accurate and complete or a fair abridgment of the proceedings. There is no way to measure a report against this standard when the proceedings are secret. The testimony in this case demonstrates the vice of a privilege in these circumstances. The Senator stated that plaintiff had been a roommate of Rosenberg. That factual assertion was concededly false, but efforts to discover whether any sixch testimony was offered at the secret hearing were fruitless for want of access to the record itself. I can see no public interest in permitting individual legislators so to speak without any opportunity for the victim to get beneath the legislator’s assertion of what the record contains. The privilege which the majority opinion establishes is, in my view, an invitation to irresponsibility. If the House or a committee acting within its authority should conclude the public interest would be served by a disclosure of the proceedings of a secret hearing, the appropriate action would be to open the record to the public. I see no need, and hence no warrant, for the unfair and unreasonable course here pursued.

Hence I believe the Senator had no privilege of any kind. It follows, of course, that defendant cannot claim a privilege to disseminate his unprivileged statement. I note in passing that N. J. S. 2A :43-l extends to the press a qualified privilege to report “official statements issued by police department heads, county prosecutors and coroners in investigations in progress or completed by them.” The statute has been tightly construed, Rogers v. Courier Post Co., supra (2 N. J. 393), and is an inroad upon the rule of liability which neither the state nor federal Legislature has seen fit to extend to press reports of the statements of their members.

*389 The second reason a qualified privilege is not here available is that the concept would not justify two statements in the report.

The first is the assertion that plaintiff (the jury could find the report was understood to relate to him) “may have been the direct link between the laboratories and the Rosenberg spy ring.” Por the reason already given, it is impossible to tell whether Senator McCarthy was here relating someone’s opinion as spread on the secret record or whether, as seems more likely from the context, it was his own observation at the time of the press conference. But since the burden was defendant’s to demonstrate the former in order to rely upon a right to report something absolutely privileged and that burden was not met, the question is whether the quoted portion can be justified on the basis of a qualified privilege in either the .Senator or in defendant to comment upon facts truthfully stated. The issue, as submitted to the jury, was whether the quoted statement was “fair comment.” It seems to me that as a matter of law it was not.

In speaking of the privilege to report judicial proceedings, a unanimous court correctly said in Rogers, supra, (2 N. J., at page 402) :

“* * * However, the protection of this privilege does not extend to report of defamatory statements not made in the actual course of a judicial proceeding, and the report must not contain defamatory observations and comments from any quarter ivhatsoever, in addition to tohat forms properly the legal proceeding.” (Emphasis added)

Pair comment means criticism. Criticism may be intense and even dispute a public official’s capacity for office on the basis of the facts revealed. But the imputation of a corrupt motive or, in any event, of the commission of crime is not criticism; it is vilification. It is itself defamatory, and the sole defense is truth of the charge made. One may dissect a judge’s opinion and call it inane or absurd, but he may not add that it was or could have been the product of bribery. There is no license in anyone to broadcast an accusation that one, not yet convicted, is guilty of crime, and absent *390 an absolute privilege, the defamer cannot insulate himself from liability by casting the charge in terms of a statement of opinion or belief.

The weight of authority holds that the imputation of a corrupt motive is not within permissible comment. Prosser, Torts (2d ed. 1955), § 95, p. 622; 33 Am. Jur., Libel and Slander, § 163, p. 156; Annotation, 110 A. L. B. 412, 416 (1937). I think that rule is correct, for motive is itself a fact, and hence the issue should be whether that motive in fact existed. The English view is that imputation of such motive may be fair comment if it is warranted by the facts, i. e., if a fair-minded man might reasonably draw that inference from the facts stated. Gatley, Libel and Slander (4th ed. 1953), p. 350. It is not necessary for present purposes to discuss the decisions in our State, Leers v. Green, 24 N. J. 239, 254 (1957); Dressler v. Mayer, 22 N. J. Super. 129 (App. Div. 1952); Merrey v. Guardian Printing & Publishing Co., 79 N. J. L. 177 (Sup. Ct. 1909), affirmed 81 N. J. L. 632 (E. & A. 1911), since the article here goes beyond the imputation of a corrupt motive and charges the commission of crime. 33 Am. Jur., Libel and Slander, § 167, p. 161. The charge asserts factual matters nowhere in the proof, i. e., that plaintiff was a member of a detestable conspiracy and fed secret information to a foreign power.

It is of no moment that the language used was that plaintiff “may be” the treacherous link rather than that he “is.” In terms of hurt, the capacity to destroy reputation is equally evident. In terms of morality, it is even less defensible to broadcast a mere possibility of criminal involvement. Suspicions should be confined to the inner sanctum of officialdom ; they do not belong in the channels of mass communication. I see no alternative to the proposition that truth alone can constitute a defense to a charge so phrased. The difference between “may be” and “is,” if material at all, relates to the measurement of the amount.of injury inflicted, rather than to liability to respond.

The further statement which I find beyond any privilege is the following:

*391 “The Senator added he has conferred unofficially with Justice Department officials and they have decided the man can be brought to trial under the espionage act.”

The form of the statement indicates that it was added by the Senator at the press conference rather than a report of what appears in the secret record. At any rate, for the reasons already stated, it may not he deemed to be within the absolute privilege of the floor. If a privilege can be found, the source must be other circumstances. I think it clear that the undisclosed officials of the Department of Justice were not privileged by virtue of their office to broadcast to the general public their opinion of the guilt of an individual. Rogers v. Courier Post Co., supra (2 N. J. 393); Kelley v. Hearst Corporation, 157 N. Y. S. 2d 498 (3d Dept. 1956); Morgan v. Bulletin Co., 369 Pa. 349 , 85 A. 2d 869 (Sup. Ct. 1952); Lancour v. Herald and Globe Ass’n, 111 Vt. 371 , 17 A. 2d 253 (Sup. Ct. 1941), annotated 132 A. L. R. 495 (1941). They may conceivably have been qualifiedly privileged to communicate their opinion to the Senator in response to an inquiry from him. We do not have the necessary facts. But a privilege upon that basis would cover only the publication to the Senator and not a republication by him or by others to whom he transmitted it.

The majority place the privilege upon the Senator’s “duty” and the public’s right to know. I can find neither element. It is not the duty of a Senator to investigate and prosecute violations of the law. That role is constitutionally reserved to the grand jury and members of the executive branch charged with the special mission. Nor is there any right in the public to know what the legislative branch has learned or thinks of the criminal responsibility of an individual. The proper forum is the courtroom where the process is attended by protective constitutional guaranties. It is true that the legislative hearing today in fact accomplishes such disclosure, but the disclosure of what there transpires does not rest upon either a legislative duty to expose or the public’s right to such information from that source. Rather the disclosure is defensible solely as an incident to the public’s *392 right to know what the legislators themselves are doing. No thoughtful observer of present-day legislative hearings can fail to sense the threat to our basic concepts of fairness which permeates unilateral inquiries into the behavior of specific persons. The responsibility for fair play rests solely with the legislative branch by reason of the constitutional grant of immunity from accounting elsewhere. But to ■ extend that immunity on either an absolute or qualified basis to press conferences held by legislators, and to boot, where the hearing was and remains secret, is, in my view, a disservice to society. It being wholly unnecessary for the legislative function, the extension is a needless waste of human rights and can only serve to aggravate the already troublesome problem of trial by publication.

I would therefore reverse the judgment on the first count.

For affirmance—Justices Heher, Burling, Jacobs, Francis and Proctor—5.

For reversal in pari—Chief Justice Weintraub—1.