# Petition — Pierce v. Capital Cities Communications, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 861

## Text

- Sipreme Court, US,
FILED

IN THE MicHar

Supreme Court of the United States ee

Term, 1978

No. |
%8-52

ALFRED R. PIERCE, Petitioner

U.

CAPITAL CITIES COMMUNICATIONS, INC.
and

RICHARD KELLMAN, Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Henry Thomas Dolan
Counsel for Petitioner
1424 Walnut Street
Philadelphia, Pennsylvania 19102
(215) 985-1300 °

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA., PA. 19107 (215) 561-4050

TABLE OF CONTENTS

Page
I CIO in 03 dik on thw th eccepeeanhaasona 1
NS et ee orn cad «kW esac ees enksbeaaaes 2
NE Oe er oe ee 2
OS iL ee ecas su ew cede duary 3
Reasons for Granting the Writ ................... 7
EN cndidinsnnenlnes van ven ebeesseabeasaue 8
SS par 5 CESS A rennulenies Od9u ee ewemesne eee 16
ook caches nsckeh cana waeness 17

Appendix:

Opinion and Judgment of United States District
Court For the Eastern District of Pennsylvania
BPE Gis iv owcdpacidessdas cee Al

Opinion and Judgment of the United States
Court of Appeals for the Third Circuit of April
SS Scie de he eha chen ewebasetaas das Al15

TABLE OF CITATIONS

Cases:
Corabi v. Curtis Pub. Co., 441 Pa. 432, 444, 273
CD oA, Pe oa. ia as nn wbuaes ees 9
Diamond v. Krasnow, 136 Pa. Super. 68, 7 A2d
en a a wha en sic eal 9
Friday v. Official Detective Stories, Inc. (D.C. Pa.)
RS ee er erry 9
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40,
5 eo Me Ae a i 6 | ee 6
Greenbelt Coop. Pub. Asso. v. Bresler, 398 U.S.
6, 96 L. Ed 9d 6, 90 S. Ce. 1937 .......... 13, 14

i

ett el te le eh a il

=

TABLE OF CITATIONS (Continued)

Cases: Page
New York Times v. Sullivan, 376 U.S. 254, 84
S. Ct. 710, 11 L.Ed. 2d 686 (1964) ...... 3, 5, 6,
7, 8, 16
Redding v. Carlton, 223 Pa. Super. 136, 296 A2d
SPREE lice te Chae in hdaaew es cha we 8,9, 11
St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct.
se WM ME EE © sn vn aicecs chee ce 5, 15, 16
Miscellaneous:
Restatement of Torts, Section 563, Commentd .. 9

ii

IN THE
SUPREME COURT OF THE UNITED STATES

Term, 1978

No.

Alfred R. Pierce, Petitioner
US.
Capital Cities Communications, Inc.
and
Richard Kellman, Respondents

Petition for a Writ of Certiorari to the United
States Court of Appeals for the Third Circuit

Petitioner prays that a Writ of Certiorari issue to
review the judgment of the United States Court of Ap-
peals for the Third Circuit entered in the above case on
April 12, 1978.

OPINIONS BELOW

The opinion of the District Court for the Eastern
District of Pennsylvania, granting defendants’ Motion
for Summary Judgment, is printed in the Appendix
hereto, and is not yet reported, officially or unofficially.

The opinion of the Court of Appeals for the Third
Circuit, affirming the judgment of the District Court, is
printed in the Appendix hereto and is not yet reported,
officially or unofficially.

2
JURISDICTION

The judgment of the Court of Appeals, printed in
the Appendix hereto, was entered on April 12,1978.

The jurisdiction of this Court is invoked under 28
U.S.C. Section 1254.

QUESTIONS PRESENTED

1. Did not defendants’ television broadcast by text
and context charge plaintiff with using knowledge
gained in public office to his pecuniary advantage in
real estate acquisitions?

2. Was not such a charge defamatory?

3. Was the defendants’ broadcast fairly and rea-
sonably to be understood by an auditor/viewer as
merely a rhetorical statement, not purporting to be one
of fact?

4. Was not the defendants’ broadcast fairly and
reasonably capable of the innuendoes plaintiff charges
it expressed?

5. Do not the plaintiff's proofs sufficiently estab-
lish that defendants made the broadcast with knowl-
edge of the falsity of its content or with reckless disre-
gard whether its content was true or false?

————

mee rH

3
STATEMENT

In this diversity action, plaintiff, a former holder of
public office (Commissioner, and sometime Chairman,
of the Delaware River Port Authority), and admittedly
a “public figure” within the meaning of that term in
the law of defamation as expounded by decisions of this
Court, notably New York Times v. Sullivan, 376 U.S.
254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), alleged he
had been defamed by a television broadcast made by
defendants from station WPVI-TV in Philadelphia on
November 20, 1973. The District Court (Higgin-
botham, J.) on defendant’s Motion for Summary Judg-
ment, after viewing a video tape replay of the broad-
cast, and considering pleadings, depositions, answers
to interrogatories, etc., pursuant to F. R. C. P. 56, de-
cided to the contrary, and entered summary judgment
for defendants. The Court of Appeals affirmed.

Station WPVI-TV is operated by the corporate de-
fendant. The individual defendant was its employee,
an investigative reporter who conceived the program,
investigated some portions of the factual background
of its subject, organized, prepared,and edited its con-
tent, and himself narrated its text on the air.

The program in question was a special offering en-
titled “Public Bridges and Private Riches”. Generally,
it undertook to examine certain parts of the operation
of the Delaware River Port Authority, a bi-state author-
ity created jointly by the State of New Jersey and the
Commonwealth of Pennsylvania for the purpose,
among others, of providing and administering bridges
and rail lines across the river. Specifically, it dealt with
certain business activities of the then Chairman of the
Authority, Ralph Cornell, in his individual private ca-
pacity, with ownership by him and by plaintiff, to-
gether or separately, of three parcels of real estate in
greater or less proximity to one of the bridges, or to the
high speed passenger rail line of the authority, or to a

4

possible future extension of that line, and with the
question whether these business activities and real es-
tate ventures did not represent a conflict of interest
between the public and private capacities of those two
individuals.

Plaintiff expressly pleaded the context of the
broadcast (Complaint Pars. 19, 21, 37, 39), as infusing
the text with meaning damaging to his reputation, i.e.,
that he had used his public position for his private
profit. An established authority in the communications
field, by affidavit filed against the Motion for Summary
Judgment, analyzed the elements of the context ren-
dering the total effect of the broadcast defamatory to a
viewer-listener. The affidavit pointed out the broad-
cast’s sharply contrasting imagery, or images unac-
companied by spoken words, designed to heighten the
contrast expressed in the title, “Public Bridges and
Private Riches”. The number of times and length of
time that the title was held on the screen, or that the
other sharply contrasting imagery was repeated, were
considered by the affiant to constitute an essential
element of the context.

Plaintiff pleaded eleven damaging innuendoes,
based on various statements uttered in the broadcast.
To both courts below, he urged that the justifiability of
the pleaded innuendoes rests not only on the text of the
statement themselves, but on the elements of their
context pointed out above, on announcements of the
program broadcast by defendants each of four days in
advance, characterizing it as “shocking”, and as rais-
ing the question “whether or not the Public Bridges are
being run for private enrichment” (Exhibit K-18), and
on defendants’ widely disseminated sales sheet promis-
ing the program would tell “how through nepotism and
informed land speculation, the Delaware River Port
Authority seems to be run more for private enrichment
than pblic interest... while JOE PUBLIC PAYS for it
all through SUPER-TOLLS” (Exhibit K-17; emphasis
in original).

5

The avowedly factual character of the statements
broadcast is clear from defend ants’ own description of
it, and is sufficient to preclude its being interpreted as
mere rhetorical effusion or journalistic hyperbole.
Kellman at deposition (Kellman A, 84) categorized his
purpose as “to bring facts forward”. He said his investi-
gation of the subject went back to “early 1972” (An-
swer to Plaintiff ’s Interrogatories, 18). The station’s
anchorman described Kellman as having “travelled
the bridges of the Authority for 90 days’’, and said the
result was “some incredible findings that go right into
your pockets”. As noted in the Opinion of the Court
below, defendants in their answer to the Complaint as-
serted “. . . the broadcast was fairly made and pre-
sented in a proper manner after careful investigation
and consisted of true facts (emphasis the Court’s) in a
matter of public interest’, etc.

As demonstrating that defendants entertained
serious doubts of the truth of their publication, the test
enjoined by St. Amant v. Thompson, 390 U.S. 727, 88
S. Ct. 1323, 20 L. Ed. 2d 262 for the existence of the
reckless disregard of truth or falsity constituting
“malice”, under New York Times v. Sullivan, supra,
plaintiff relied on admissions of defendant Kellman at
deposition. Though he began preparation of the pro-
gram believing it possible he would discover plaintiff
had used inside official information in acquisition of
land holdings, he knew before broadcast he had “no
facts to support a public statement to that effect”
(Kellman A, 63). He therefore refrained from such an
explicit statement. Nevertheless, as to plaintiff, he
questioned, rhetorically, whether “people with such in-
terlocking interests can truly act in the public inter-
est”, and referred to him as a Commissioner “involved
in projects which link (him) with Port Authority proj-
ects, and make (him) look bad if the public is told about
them” (Complaint, Pars. 30, 33). Before he uttered
these statements he knew plaintiff ’s acquisition of
ownership in any of the three parcels in question was

6

based on no knowledge concerning any project of the
Port Authority other or greater than public knowledge,
and, indeed, in every instance, dated from times after
plaintiff had left office. He also knew that “link” be-
tween the real estate ownerships in questions and any
Port Authority project was simple geographical loca-
tion. Of this whole truth of the matter, he chose to say
nothing.

The District Court held (1) that nothing in the
broadcast charges plaintiff by name with impropriety
(2) nevertheless, the language used could be fairly and
reasonably construed, as plaintiff alleged in the in-
nuendoes he pleaded, as charging him with acquiring
real estate through knowledge gained in public office
(3) that though Kellman knew better, knowing the
whole truth, the half-truths he uttered were merely
“erroneous”, and erroneous statement of fact is inevi-
table in free debate, citing Gertz v. Robert Welch, Inc.,
418 U.S. 323, 339-40, 94 S. Ct. 2997, 41 L. Ed. 2d 789.

The Court of Appeals used different reasoning to
reach the same result. It held, construing decisions of
Pennsylvania Courts, that the content of the broadcast
was not defamatory to begin with. But even if it were,
the Court continued, plaintiff ’s case failed for lack of
proof defendants acted with knowledge of the falsity or
reckless disregard of the truth or falsity of their state-
ments, the “malice” necessary for defamation of a pub-
lic figure to be actionable under New York Times v.
Sullivan. Further, to the Court’s view, some of the
statements, as well as the title of the program would be
understood by a reasonable television viewer as only
rhetorical hyperbole, not intended as statements of
fact.

7
REASONS FOR GRANTING THE WRIT

The decision below should be reviewed because it
concerns application of the constitutional standard
announced by this Court in New York Times v. Sulli-
van, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686
(1964) for actionability of alleged defamation of a pub-
lic figure to the medium of a television broadcast, and
the powerful coupling therein of words, both spoken
and written, with images. Whether such a doubled ap-
peal to the senses of the viewer should require a more
searching analysis of the content of the utterance, to
determine its actionability, is a question not dealt with
by the decisions of this Court.

The decision below should be reviewed also be-
cause it raises the question whether the knowledge of
falsity or reckless disregard of truth or falsity, of which
defendant must be guilty, under New York Times v.
Sullivan, for actionability of the utterance, should re-
late not merely to the text of the utterance but also to
its context and innuendoes.

8
ARGUMENT

Plaintiff submits the Court of Appeals erred by de-
ciding, in a way in conflict with applicable state (Penn-
sylvania) law, that the defendants’ utterances

I. Were not defamatory to begin with.

II. Amounted to mere hyperbole, not intended, nor
reasonably understood to be intended, as statements of
fact.

Plaintiff further submits the Court of Appeals erred
by deciding a federal question in a way in conflict with
applicable decisions of this Court in that:

III. It held plaintiff ’s proof fell short of showing
that defendants made their utterance with malice,
within the meaning of New York Times v. Sullivan,
supra, i.e., with knowledge of its falsity or reckless dis-
regard of its truth or falsity.

I,

The Court of Appeals, plaintiff submits, misapplied
Pennsylvania law in concluding the content of defend-
ants’ broadcast not to have been defamatory to begin
with. The Court reached this conclusion principally by
assimilating this case strictly to Redding v. Carlton,
223 Pa. Super. 136, 296 A 2d 880 (1972). That case
concerned a statement made during a campaign pub-
licly mounted by defendants over a proposal that a cer-
tain parcel of land, owned by a township supervisor, be
bought as the site of a township building. The defend-
ant, opposing such a purchase, published a statement
that the supervisor-landowner was guilty of “a conflict
of interest and perhaps much more.” The Superior
Court of Pennsylvania, quoting New York Times v.
Sullivan for its espousal of “uninhibited, robust, and
wide open debate” on public matters, held the defend-

9

ant’s statements only “the type of rhetorical hyperbole
common to American politics’ and shielded by the
First Amendment. The lower Court’s denial of recovery
was affirmed.

The Court of Appeals concluded that a Pennsylva-
nia Court would reach the same conclusion concerning
the content of the broadcast in the present case, that in
toto it amounted to no more than an implication of a
conflict of interest, and that this, per Redding v.
Carlton, was non-defamatory.

Plaintiff submits a conclusion that the entire effect
of defendants’ broadcast was to charge plaintiff with
but a conflict of interest requires one to ignore the con-
text of the program. Indeed, the opinion of the Court of
Appeals scarcely refers to context, and seemingly con-
tents itself with examination of the mere text of de-
fendants’ various statements. But it is the law of Penn-
sylvania that a determination whether words import a
defamatory meaning depends on context as well as
text, not merely on text.

Corabi v. Curtis Pub. Co., 441 Pa. 432, 444,273 A
2d 899

Restatement of Torts, Section 563, Comment d

Textual statements themselves strict and literal
truth can be rendered defamatory by the context in
which they are frained.

Diamond v. Krasnow, 136 Pa. Super. 68, 7 A 2d 65

Friday v. Official Detective Stories, Inc. (D.C.
Pa.) 233 F. Supp. 1021

Both Courts below viewed a video tape replay of
the program. The District Court concluded it was in-
deed defamatory, so much so that it found the Motion
for Summary Judgment to prevail ‘‘but only by a scin-
tilla’”. The Court of Appeals, plaintiff submits, lost
sight of the critical consideration of context. What

10

must be reckoned with under that heading are the title
of the program, “Public Bridges and Private Riches”,
and the contrast suggested by these words between
honorable public service and private rapacity, the ap-
peal of the words to the ear, half alliteration and half
rhyme, the use of the title not only by spoken word of
the announcer, but by incorporation in the “art work”
used as a display to hold attention at points of station
break or commercial advertising, the number of times
of this display (at least five), the length of time of the
display (4, 7, or 8 seconds), the sharply contrasting im-
agery used to emphasize the contrast expressed in the
title, payment of bridge tolls or passenger fares by the
public with opportunities or temptations suggested by
the broadcast for those in official authority over opera-
tion of the bridges to profit thereby, and closeup shots
of expensive cigars being smoked at Port Authority
meetings. Underscoring all these contrasts of upright
public service with private greed, the individual de-
fendant Kellman, creator and narrator of the program,
in the concluding paragraph of his running commen-
tary returned to the title of the program and directly
contrasted the phrase “Public Bridges and Private
Riches” with ‘Public Bridges and Public Concern”, as
a description of a change highly to be desired in “the
system of operations on the Port Authority.”

In addition, to be counted under the head of con-
text are Exhibit K-17 and Exhibit K-18, each an ad-
vance publication by defendants describing the nature
and content of the forthcoming special program. Ex-
hibit K-17 was the sales sheet used by defendant to
canvass its customers for advertising on the program,
in which its content was described as telling “how
through neoptism and informed land speculation, the
Delaware River Port Authority seems to be run more
for private enrichment than public interest . . . while
JOE PUBLIC PAYS for it all through SUPER-TOLLS”
(emphasis in original). Exhibit K-18 consisted of an-

11

nouncements of the program broadcast by defendants
each of the four days preceding it, five times in all,
characterizing it as ‘“shocking’’, and as raising the
question “whether or not the Public Bridges were being
run for private enrichment.”

Of none of these particulars did the Court of Ap-
peals see fit to make anything, in reaching its conclu-
sion. All of them, plaintiff submits, heighten the over-
all accusation of the program, the gravamen of the
Complaint, that plaintiff used insider knowledge ac-
quired in his official capacity for his private pecuniary
advantage.

Il.

Plaintiff submits the Court of Appeals failed al-
together to take into account facts glaringly at odds be-
tween the present case and Redding v. Carlton. The
statement sued on in Redding was made in the heat of
a public campaign. The broadcast here sued on was
proclaimed by the defendants, over and over, to be a
presentation of bed-rock fact established by long inves-
tigation, its authenticity assured by visual displays of
minutes of meetings of Port Authority Commissioners,
books of records of deeds of land purchases being
withdrawn from racks in public record offices, and
being opened at an assertedly damning page for the
television viewer's own reading, and the like.

Kellman at deposition (Kellman A12) said the
broadcast was a “news program... revealing new in-
formation to the public. . . ."” Later in the same deposi-
tion (Kellman A84) he said:

“Incidentally, I might add to that that propriety is
something for the public to judge once they have
facts, and my purpose in the entire program was to
bring facts forward.”

12

Anchorman Larry Kane, introducing the program,
(Complaint par. 15) said:

.... for 90 days, Action News reporter, Richard
Kellman has travelled the bridges of the Delaware
River Port Authority, etc.’’.

Piaintiff ’s interrogatory No. 18 read:

“Give the date when defendant Kellman or any
other employee of defendant Capital Cities Com-
munications, Inc. began investigation of the mat-
ters portrayed in the program broadcast as
aforesaid.”

Defendant’s answer was:
“18, Early 1972.”

Kellman participated in preparation of defendants’
Answers to Interrogatories (Kellman, A77). Anchor-
man Kane’s introduction of the program included the
statement:

“Kellman’s crossing brought us some incredible
findings that go right into your pockets.”

Webster’s 3rd International Dictionary defines the
word “‘findings,’”’ in the sense used in this statement of
Kane’s as follows:

“findings n. — 3b the result or conclusion of any
inquiry or investigation.”

In March, 1974 a viewer of the program wrote to
the station (Exhibit K-15) and referred to it as a “doc-
umentary’’. McCurdy, General Manager of Station
WPVI-TV replied (Exhibit K-16), and agreed with that
description of the broadcast. Webster (3rd Interna-
tional) supplies this definition of the term:

“Documentary: Having or claiming the objec-
tive quality, authority, or force of documentation in

13

the representation of a scene, place or condition of
life or of a social or political problem or cause:
FACTUAL, OBJECTIVE, REPRESENTATIONAL
— used of works of literature, the theater, art, pho-
tography, radio and T. V. programs.”

Even in their pleadings in this very action, as the
opinion of the District Court points out, defendants, in
their answer to the Complaint have asserted:

“The broadcast was fairly made and presented
in a proper manner after careful investigation and
consisted of true facts (emphasis the Court’s) in a
matter of public interest,” etc.

The effect of these descriptions of the program,
coming from defendants’ own mouths, is, plaintiff
submits, to preclude any contention that its insinua-
tions and implications as to plaintiff were mere edito-
rial hyperbole, epithetical in character, or simple opin-
ion. On the contrary, the program was, avowedly, a
structure of long-investigated and purportedly authen-
ticated fact, with supposedly circumstantial corrobora-
tion found by Kellman’s following trails through min-
utes of meetings of Port Authority Commissioners and
recordings of deeds in public record offices, camera
shots of these documents taken meanwhile and of-
fered for viewing on the television screen. Plaintiff
submits that a report so composed and so delivered
cannot be dismissed as not at all to be meant or under-
stood as a statement of fact, nor now excused as a mere
excess of vehemence, within the free speech
guaranteed by the First Amendment. In the light of
defendants’ own characterizations of the program and
their account of its long genesis, it cannot possibly be
said, in the words of this Court in Greenbelt Coop. Pub.
Asso. v. Bresler, 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct.
1537, that “even the most careless (viewer) must have
perceived that the (statements were) no more than
rhetorical hyperbole, a vigorous epithet.”

14

The Court of Appeals, however, so read this record,
and cited Greenbelt for its conclusion, thereby, plain-
tiff submits, falling into error.

II.

Plaintiff submits the Court of Appeals erred in
holding plaintiff ’s proof fell short of showing that de-
fendants made their utterance with malice.

The record shows with indisputabie clarity that de-
fendant Kellman began preparation of this program
with the preconception that plaintiff had turned
knowledge to which he was privy in public office to his
private profit. At deposition he identified Exhibit K-5 as
his introductory proposal to his Chief, Kampmann, set-
ting forth his original concept of the program. In it he
referred to “temptations for Commissioners and others
to profit personally”, and in a subsequent memo (Ex-
hibit K-6) asserted “guys like Pierce and Cornell are
making huge profits through special knowledge and
influence that comes with D.R.P.A. (Delaware River
Port Authority) appointments.” In a third report to his
Chief (Exhibit K-8) he said, “I think Pierce would be
excellent as a former D.P.R.A. Commissioner who’s
making hay as a result of contacts and knowledge
gained as a Commissioner.”’

Further, Exhibit K-17, identified by Kellman as “a
sales sheet for the selling of commercial time within
this program in question”, and distributed to prospec-
tive advertisers, not only prominently displayed the
title of the program but expounded it in terms of “in-
formed land speculation” and “private enrichment”
(emphasis in the original) at public expense.

The broadcast named plaintiff as holding a partial
ownership interest in three specifically identified prop-
erties, the 90-acre tract on Route 322, the 5% acres in
Woodbury, and the small parcel at the Ferry Avenue
Station of the Hi-Speed Line. As to every one of these
three, plaintiff submits, the defendant Kellman con-

15

ceded that by air time of his broadcast he had no foun-
dation in fact or otherwise for the inference his state-
ments invited, that plaintiff had used knowledge to
which he was privy in his official position for his pri-
vate profit. Of the three parcels of land, plaintiff ’s
interest in which Kellman held up before his television
audience for arraignment, he was forced at deposition
to concede that in each one plaintiff ’s first acquisition
of any interest was at a date subsequent to his leaving
office as a Commissioner of the Authority (Kellman A
pages 41-42, 43, 45, 51-52) and based on no knowledge
concerning any project of the Port Authority other or
greater than public knowledge.

Kellman at deposition (Kellman A pages 63-64)
conceded his preconception of Pierce’s wrong doing,
but the effect of his discoveries it was without factual
basis brought him only to refrain from an explicit ac-
cusation. He testified thus:

“Q. Did you believe in the course of your prepara-
tion that it was possible that Mr. Pierce had
taken advantage of inside information coming
to him as a commissioner of the Authority?

A. Yes, I thought it was possible during the
course of the preparation of the program.

Q. And did you likewise in his case come to the
conclusion that this hypothesis could not be

supported?

A. I came to the conciusion that I didn’t have the
facts to support a public statement to that ef-
fect so | did not make the statement.”

The Court of Appeals contented itself with accept-
ing this self-serving disclaimer as an exoneration of
defendants having “entertained serious doubts as to
the truth of any remark in the broadcast.” This reason-
ing disregards the total context, content, and impact of
the program, title and all. St. Amant v. Thompson, 390

16

U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262, the decision
of this Court which first explicated the phrase
“knowledge of its falsity or reckless disregard of its
truth or falsity’ in terms of “entertaining serious
doubt of the truth” of the defamatory utterance, did
not do so with reference to “any remark in the broad-
cast;’’ this Court’s words were ‘entertain serious
doubts as to the truth of its publication” (emphasis
supplied). The “publication” here in suit is not “any
remark” taken singly and out of context, it is the
broadcast entire as heard and viewed by the television
audience.

Failure to state a negative when it would off-set the
damaging implication of a positive already uttered, the
Court of Appeals reasons, does not constitute the “‘ac-
tual malice” of New York Times v. Sullivan. This,
plaintiff submits, is to accept the proposition that a
half-truth is never a lie. The time honored oath re-
quired of any witness in Court is itself witness to the
contrary. Defendants knew the whole truth, but chose
to tell it selectively, and for this broadcast wove a
tissue of half-truth and innuendo. Their knowledge of
the whole truth is itself knowledge of the falsity of their
uttered half-truths, and reckless disregard of the truth
or falsity of their publication.

CONCLUSION

For the reasons set forth above, it is respectfully
submitted that this Petition for a Writ of Certiorari
should be granted.

hy Phu

Henry Thomas Dolan
Counsel for Petitioner

17
CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of July, 1978
three copies of the Petition for Writ of Certiorari were
served by Hand Delivery on Gregory M. Harvey, Es-
quire, 2100 Fidelity Building, Philadelphia, Pa. 19109
and Elihu A. Greenhouse, Esquire, 2500 Two Girard
Plaza, Philadelphia, Pa. 19102, Counsel for Respon-
dents. I further certify that all parties required to be
served have been served.

a a

Henry Thomas Dolan
Counsel for Petitioner

1424 Walnut Street
Philadelphia, Pa. 19102

Al

IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF PENNSYLVANIA

Civil Action No. 74-1248
ALFRED R. PIERCE
Vv.
CAPITAL CITIES COMMUNICATIONS, INC.
and

RICHARD KELLMAN

HIGGINBOTHAM, A. L., J. February 7, 1977
OPINION AND ORDER

Alfred R. Pierce, formerly a Commissioner of the
Delaware River Authority and the Mayor of Camden,
New Jersey, has brought this diversity action against
defendants Capital Cities Communications, Inc.,
owner and operator of television broadcasting station
WPVI-TV, and Richard Kellman, a television reporter
employed by WPVI-TV, for an alleged defamation
which occurred on November 20, 1973 when WPVI-TV
televised a special program entitled “Public Bridges
and Private Riches’”’.

Plaintiff seeks a total of four million dollars in
damages, including two million for punitive damages.

Defendants have filed a motion for Summary
Judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. The parties have submitted affidavits,
briefs, a transcript of the program, a videotape of the
program which was shown at oral argument and sev-
eral depositions. For the reasons stated herein, the de-
fendants’ motion for Summary Judgment is granted.

A2

In granting defendants’ motion, I recognize that
Alfred R. Pierce may feel that careful and accurate re-
porting could have given him a better and more favor-
able image. I also know that with the extraordinary
powers of the media, their occasional failure to pursue
the highest standard of accuracy has caused many
honorable and responsible persons to decline any op-
tions to serve in public office because they are not will-
ing to have their honest efforts vilified by omissions,
excesses or distortions. But, this issue has been an-
swered by the United States Supreme Court’s holding
that as a matter of Constitutional law a public official
may not recover

... damages for a defamatory falsehood relating to
his official conduct unless he proves that the
statement was made with ‘actual malice’ — that is,
with knowledge that it was false or with reckless
disregard of whether it was false or not. New York
Times v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct.
710, 726 (1964).

By this Constitutional standard, the defendants, as
to their comments on Pierce, win — but merely by a
scintilla. I hope that the media will never believe that a
Constitutional right which precludes them from liabil-
ity is a professional justification for sloppy reporting. '
Obviously, I am aware of the problem of compressing
complex factual data in a flashy television news set-
ting. But hopefully, because of its instant and extraor-
dinary impact with its abbreviated form, reporters
should pursue an even higher level of responsibility.
The defendant station’s slogan ‘“‘“ACTION NEWS”
should not become a synonym for “partially inaccu-

' An example of sloppy and misleading reporting is the failure
to disclose that Pierce had purchased the land in question after he
left public office and not before. It was also not disclosed that when
Pierce purchased the land, it was public knowledge that the bridge
would be built.

A3

rate news.” The public deserves a better standard with
or without the station’s Constitutional immunity.

I.

Mr. Pierce was appointed a commissioner of the
Delaware River Port Authority by the Governor of
New Jersey and served from June 4, 1962 until May 11,
1970; from i969 until May 11, 1970 he served as —
Chairman of the Authority [Plaintiff ’s Complaint 12).
Plaintiff asserts that prior to the defendants’ broadcast
he “. . . was a person of good name, credit and reputa-
tion, both personally and professionally, and deserv-
edly enjoyed the esteem and good opinion of his
friends, acquaintances, business and professional as-
sociates, professional clients.”” He further alleges that
he “... deservedly enjoyed the reputation of being
honest, competent, upright and responsible... .”
[Complaint 99]

In approximately mid-August of 1973 defendant
Kellman was authorized by his superior at Capital
Cities, Mel Kampman, to prepare and produce a pro-
gram to explore the activities of the Delaware River
Port Authority and the performance of the Chairman,
Ralph Cornell; this program was part of a series of
news broadcasts on issues of public concern. [Kellman
Deposition, pp. 23, 24 and 39]

Fourteen statements made on the WPVI-TV broad-
cast form the basis of the plaintiff ’s defamation ac-
tion:

415: ‘“‘When Washington crossed the Delaware
River, it was absolutely free. When Action News
reporter, Richard Kellman, crossed the Delaware
River, it cost him sixty cents. Washington’s cross-
ing. brought us a nation. Kellman’s crossing
brought us some incredible findings that go right
into your pockets. For 90 days now, Action News
reporter, Richard Kellman has traveled the bridges

A4

of the Delaware River Port Authority and the high
speed road to profit. In a minute, Action News pre-
sents PUBLIC BRIDGES AND PRIVATE RICHES
but hold onto your dollars. After this program you
may want to swim across the Delaware River’.
[WPVI-TV Transcript (TR.) Larry Kane, p. 1]

418: ‘The first hint of what lay ahead came in
August of 1969 when the commissioners were to
vote on a contract for the bridge superstructure.
The steel lattice work that would support the road
way of this largest cantilever highway bridge in the
U. S. Bethlehem and U. S. Steel were the only bid-
ders with Bethlehem the low bidder at forty-seven
million dollars ... eight million above the en-
gineers’ estimate.

[Kellman (K), TR. p. 3]

“Action News obtained a copy of the Port Authority
minutes of September 17, 1969. At that meeting, a
motion was made to readvertise for new bids. Vot-
ing no, were Pa. commissioners Smith, Marsh and
Crisconi. New Jersey commissioners voting no in-
cluded Chairman Alfred R. Pierce and the present
chairman Ralph Cornell.”

(K. TR. p. 5]

(20: “‘Bethlehem’s bid was accepted and in
1969 construction began ... Soon a fifty million
doliar bridge had grown to one costing one hundred
twenty million — a cost difference equivalent to
120 million bridge tolls at 60 cents each. Andso...
as the toll-payers shelled out nickels, dimes and
quarters to pay for the project some Port Authority
commissioners saw an opportunity for enormous
profits, profits on land deals made possible by the
very bridge motorists would be paying for well in
the year 2000.”

[K. TR. p. 5]

AS

(22: “For years ... corporations have been
buying up farmland, jockeying for position ...
waiting for the big land rush. Among the properties
with identifiable owners . . . is the 90 acre plot off
Route 322. . . where the expressway linking Route
130 and 295 will be built. The deed is recorded at
the Gloucester County Courthouse in Woodbury. It
shows the property is owned by Alfred R. Pierce...
former Mayor of Camden and Port Authority
Chairman at the time the Barry bridge was ap-
proved.”

[K. TR. p. 6]

24: ‘“‘While the bridges are beautiful, they
also represent a threat to the environment that
mass transit doesn’t. Bridges encourage auto con-
gestion. Trains promote efficiency which is why
the Port Authority is especially proud of the Lin-
denwold Hi Speed Line. Fully automated, the Hi
Speed Line pays for its operating costs through its
fares. What it doesn’t pay for is the ninety-three
million it costs to build. That comes from motorists
using the bridges...

: * * *

“This is the Ferry Ave. station of the Lindenwold
Hi Speed line. The ground on which I am now
standing is prime commercial property. | . a few
years there will probably be a high rise office build-
ing here. The land is owned by a combine called
ABJ, Inc. Shareholders include former Camden
mayor and Port Authority Chairman Alfred R.
Pierce.”

[TR. K. p. 7, 8]
(26: “Because of the enormous debt the Port
Authority owes ... most commissioners have

vowed never again to pay for mass transit through
bridge tolls. Money must come from Washington
and from the two states. An expansion must come

A6

slowly ... to the Moorestown Mail .. . the Jersey
Shore ... and to Glassboro ... by way of Wood-
bury. But not all three directions at once. There
must be priorities.

‘‘A Port Authority study recommended the
Gloucester route to Woodbury where there are five
acres of land owned by a corporation that includes
as shareholders former Camden mayor and Port
Authority Chairman Alfred Pierce and former Port
Authority Commissioner John Crisconi of Phila.

“In Mid-October, Port Authority engineers con-
firmed their recommendation that the Woodbury
station would be built here, adjacent to the prop-
erty owned in part by Pierce, Crisconi and Cor-
nell.”

(TR. K. p. 9]

728: “I think that in this kind of position
where you are obviously involved completely with
the public’s trust you have to go out of your way to
prove your honesty by all of your actions. You can-
not appear to be doing something dishonest even if
you yourself feel that what you are doing is honest.
I certainly would say that buying land raises
doubts.”

[TR., Interviewee John Bunting, p. 10]

430: “On October 12, director of bridges for
the Port Authority, Andrew Ferenz, was fined and
given a suspended jail sentence for using Port Au-
thority building materials on his own home.

[K., TR. p. 10]

‘“‘And Andrew Ferenz is the brother-in-law of
former Camden mayor and Port Authority Chair-
man, Alfred R. Pierce. Is it possible that people
with such inter-locking interests can truly act in
the public interest?”

[K., TR. p. 11]

ey Se ee ee ne

A7

133: “Is it necessary to have men of such
enormous power and prestige to serve as commis-
sioners when they get involved in projects which
link them with Port Authority projects and make
them look bad if the public is told about them?”’

[TR., K., p. 11]

135: “By July first of next year, Gov.-elect
Brendan Byrne of the state of N.J. will have six
new appointments to the Delaware River Port Au-
thority and Action News will be watching them
closely and tonight we have a question. Will the
background of the appointees be thoroughly
checked out to avoid any possible future conflict of

interest?

“Now before you take that swim across the Dela-
ware River keep this in mind. The system of opera-
tions on the Port Authority can and might be
changed. ‘Public Bridges and Private Riches’ can
be changed to ‘Public Bridges and Public Concern’
if indeed the public is concerned about the opera-
tions of the Pert Authority.”

[TR., Larry Kane, p. 12]

II.

Plaintiff contends that these statements are de-
famatory and therefore actionable under Pennsylvania
law. Mr. Pierce alleges that the broadcast was replete
with innuendos that he use public office for personal
gain. Defendants deny that the broadcast accused the
plaintiff of acting in his own selfish interest and in
abuse of his public trust as the holder of his office. It is
contended by the defendants that “. .. the broadcast
was fairly made and presented in a proper manner
after careful investigation and consisted of true facts
in a matter of public interest and general concern relat-
ing to certain transactions, some of which involved the
plaintiff.” Urging that summary judgment is appropri-

A8

ate in this case, the defendants argue that even if the
innuendos are warranted under state law, the First and
Fourteenth Amendments to the federal Constitution
preclude plaintiff, admittedly a public figure, from
maintaining this libel action unless actual malice on
the part of the defendants can be shown. New York
Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.
2d 686 (1964).

In the New York Times v. Sullivan decision,
supra, the Supreme Court held that the national com-
mitment to the principle that debate on public issues
should be uninhibited, robust and wide-open requires:

“. .. a federal rule that prohibits a public official
from recovering damages for a defamatory false-
hood relating to his official conduct unless he
proves that the statement was made with “actual
malice” — that is, with knowledge that it was false
or with reckless disregard of whether it was false or
not”

New York Times v. Sullivan, supra; See also Curtis
Publishing v. Butts, 388 U.S. 130, 87 S.Ct. 1975
(1967); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94
S.Ct. 2997, 41 L.Ed. 2d 789.

What Mr. Pierce must prove, therefore, is not that
certain statements made by the defendant were false,
but that the defendants made the statements with a
“high degree of awareness of their probable falsity.”
St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct.
1323, 1325, 20 L.Ed. 2d 262 (1968); Accord, Beckley
Newspapers Corp. v. Hanks, 389 U.S. 81, 84-85, 88
S.Ct. 197, 199-200, 19 L.Ed. 2d 248 (1967); Garrison v.
Louisiana, 379 U.S. 64, 75-76, 85 S.Ct. 209, 212, 216-
217, 13 L.Ed. 2d 125 (1964).

But, no federal constitutional principle has been
established determining which factors the trial court
can consider in deciding whether the plaintiff has met
his burden of proof. It is the state law which deter-

A9

mines whether this court should look at just the tran-
script of the program or whether this court should con-
sider not only what the communication states but what
it suggests.

Under Pennsylvania law, a communication is de-
famatory if “. . . it tends to so harm the reputation of
another as to lower him in the estimation of the com-
munity or to deter third persons from associating or
dealing with him.” Cosgrove Studio & Camera Shop,
Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753
(1962). See also, Fram v. Yellow Cab Company of
Pittsburgh, 380 F.Supp. 1314, 1326 (W.D.Pa. 1974).
Innuendos may be used to explain in what manner the
communication is defamatory. But, the innuendos
must be warranted, justified and supported by the
communication. Innuendos cannot be “used to intro-
duce new matter, or to enlarge the natural meaning of
the words, and thereby give to the language a construc-
tion which it will not bear.” Sellers v. Time, Inc., 423
F.2d 887, 890 (3rd Cir. 1970).

It is the function of this court to determine whether
the language used in the broadcast could be fairly and
reasonably construed to have the meaning imputed in
the innuendos. Corabi v. Curtis Publishing Co., 441
Pa. 432, 273 A.2d 899 (1971); Sarkees v. Warner-West
Corporation, 349 Pa. 365, 367, 37 A.2d 544, 546
(1944).

All parties admit that the focus of the broadcast
was Ralph Cornell, Chairman of the Delaware River
Port Authority when the program was aired in
November of 1973. But, the plaintiff argues that the
defendants threw him (Pierce) “. . . to the meat grinder
for good measure” by implying that he acted dishon-
estly and that he used his public office for private en-
richment while he was a Commissioner and Chairman
of the Authority. [Pierce, Deposition B, p. 146]

Plaintiff contends that they accused him of impro-
priety and dereliction of his duty because while Chair-
man of the Authority he voted not to readvertise for

Al10

new bids on construction of the Commodore Barry
Bridge. The following sentence was found particularly
offensive: “New Jersey commissioners voting no in-
cluded Chairman Alfred R. Pierce and the present
Chairman Alfred R. Pierce.” This statement allegedly
singles out Pierce (and Cornell). But nothing in the
broadcast charges Pierce with impropriety. Pierce is
not specifically named as one of the Port Authority
Commissioners who saw an opportunity for enormous
profits, profits on land deals made possible by the very
bridge motorists would be paying for, well in the year
2000 [Complaint 920]. Considering the nature of the
audience reached by the broadcast (a necessary con-
sideration under Pennsylvania law), Boyer v. Pitt Pub.
Co., 324 Pa. 154, 188 A.203 (1936), it appears that a
reasonable inference would be that some of the com-
missioners may have profited by the vote; the innuendo
that Pierce was singled out is not warranted.

It is ironic that at the time of this meeting (Sep-
tember 17, 1969), plaintiff did own an interest in land
which he characterized as strategically located to the
completed bridge. At the time of the vote, plaintiff had
not disclosed this interest to any other Commissioner.
[Pierce, Deposition B, pp. 111, 116, 117-118]

The plaintiff also asserts that the innuendo that
plaintiff improperly used his public office is warranted
by the following statements: ‘‘The deed . . . shows the
property is owned by Alfred R. Pierce’”’ [422]; ‘“‘The land
is owned by a combine called ABJ, Inc. Shareholders
include former Camden Mayor and Port Authority
Chairman Alfred R. Pierce’’ [%24]; and “In Mid-
October, Port Authority engineers confirmed their rec-
ommendation that the Woodbury station would be built
here, adjacent to the property owned in part by Pierce,
Crisconi and Cornell” [426]. In sum, the defendants’
broadcast reported that the plaintiff was a Commis-
sioner of the Delaware Port Authority and was at least
partial owner of land which was “strategically located”

All

near certain Port Authority projects such as the Lin-
denwold High Speed Line. Although nothing in the
broadcast specifically states when the plaintiff ac-
quired these land interests, plaintiff correctly argues
that under Pennsylvania law, the language in the
broadcast can be fairly and reasonably construed to
have the meaning imputed in the innuendos —
namely, that the plaintiff obtained these interests by
virtue of his public position. Corabi v. Curtis Publish-
ing Co., supra.

There is a difference between what the defendants
knew about Pierce’s land transactions and what was
stated or implied in the broadcast. It is argued by the
plaintiff that proof of this disparity constitutes proof of
actual malice, rendering the constitutional protection
afforded putative defendants by the New York Times v.
Sullivan decision inapplicable to the defendants in this
case. In support of this contention plaintiff cites
Kellman’s testimony at oral deposition. When ,ues-
tioned about the plaintiff ’s purchase of land in the lo-
cation of the Barry Bridge, Kellman said he was aware
that “. . . the Bridge was public knowledge prior to the
purchase of that property as reflected in the deeds that
I discovered.” [Kellman, pp. 41-43]. Kellman indicated
that he was also aware that “Mr. Pierce’s acquisition
... Was in 1971,. . . it was after the construction of the
bridge had begun.” It is uncontested by the defendants
that Pierce left public office in 1970; Kellman was
aware that Pierce left public office in 1970 when the
broadcast was made. [Kellman 43, 45]. In response to
inquiries as to plaintiff ’s interest in land at the Ferry
Avenue Station of the High Speed Line, Kellman con-
ceded that he was aware at the time of the program
that the plaintiff did not obtain this interest until after
he had left public office. [Kellman, p. 53].

It is true that the program failed to reveal when
Mr. Pierce purchased land situated strategically near
various Port Authority projects. Such omissions render

Al2

certain statements erroneous. But, as the Court said in
Gertz v. Robert Welch, Inc. , 418 U.S. 323, 339-340, 94
S.Ct. 2997, 41 L.Ed. 2d 789 (1974), “although the er-
roneous statement of fact is not worthy of Constitu-
‘tional protection, it is nevertheless inevitable in free
debate.”

Plaintiff brings to this court’s attention two addi-
tional statements which are allegedly defamatory. One
such statement concerns Mr. Pierce’s relationship to
Andrew Ferenz. In October, 1973 Ferenz was fined
and given a suspended jail sentence for using Port Au-
thority building materials on his own home. During the
November, 1973 broadcast, defendants referred to
Ferenz as the plaintiff ’s brother-in-law. Ferenz is ac-
tually married to Mr. Pierce’s wife’s cousin. [Pierce,
Dept. B, 95, 97]. While defendants admit to this error,
plaintiff has produced no evidence to show that this
misstatement was made with malice. Factual inac-
curacies such as this are constitutionally protected un-
less plaintiff demonstrates that the defendants were
aware of the likelihood that they were disseminating
false information. St. Amant v. Thompson, supra, 390
U.S. at 727, 88 S.Ct. at 1325.

The final statement challenged by the plaintiff is
John Bunting’s reply to a question posed by Kellman:

“T think that in this kind of position where you
are obviously involved completely with the public’s
trust you have to go out of your way to prove your
honesty by all your actions. You cannot appear to
be doing something dishonest even if you yourself
feel that what you are doing is honest. I certainly
would say that buying land raises doubts.”

In his deposition, Pierce described Bunting’s
statement as “immoral” [Pierce, Deposition B, p. 144].
However, his opinion is clearly protected by the First
and Fourteenth Amendments, as the Court ruled in
Gertz v. Robert Welch, supra:

A13

‘Under the First Amendment there is no such
thing as a false idea. However pernicious an
opinion may seem, we depend for its correction
not on the conscience of judges and juries but on
the competition of other ideas.” 418 U.S. at 339-
340.

It is likely that the program “Public Bridges and
Private Riches” may have caused some annoyance
and embarrassment to Mr. Pierce; Mr. Pierce’s repu-
tation may have been damaged by the broadcast, al-
though no evidence of such injury appears in the rec-
ord. Some of the remarks may even be characterized
as “vehement,” “caustic” or “unpleasantly sharp.”
But showing that a remark is vehement or is a “vigor-
ous epithet” is not enough when, as here, the plain-
tiff is a public official; factual error, defamatory con-
tent and even resort to exaggeration and vilification
are essential to free public discussion. New York
Times v. Sullivan, supra, 376 U.S. at 272, 84 S.Ct. at
721; Greenbelt Publishing Ass'n v. Bresler, 398 U.S.
6, 90 S.Ct. 1537, 26 L.Ed. 2d 6 (1970).

A showing of malice may not be presumed but is a
matter for proof by the plaintiff. Time Inc. v. McLaney,
406 F.2d 565, 572 (Sth Cir. 1969). See also Fram v.
Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314, 1335
(W.D.Pa. 1974). In the instant case plaintiff has failed
to demonstrate thax, on the basis of pretrial affidavits,
depositions, and documentary evidence, defendants
acted with actual malice, the standard required by the
Constitution. Plaintiff ’s bare allegation of malice is
not sufficient to withstand a Motion for Summary
Judgment. Therefore, defendants’ Motion for Sum-
mary Judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure is GRANTED.

BY THE COURT:
A. LEON HIGGINBOTHAM, J.

Al4

ORDER

AND NOW, this 7th day of February, 1977, upon
consideration of pretrial affidavits, depositions, docu-
mentary evidence and oral argument, it is hereby OR-
DERED that defendants’ Motion for Summary Judg-
ment pursuant to Rule 56 of the Federal Rules of Civil
Procedure is GRANTED.

BY THE COURT:
A. LEON HIGGINBOTHAM, J.

Al15

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 77-1470

ALFRED R. PIERCE, Appellant,
v.

CAPITAL CITIES COMMUNICATIONS, INC.
and RICHARD KELLMAN

Appeal from the United States District Court for the
Eastern District of Pennsylvania
No. 74-1248

Argued January 13, 1978

Before: ADAMS, WEIS, Circuit Judges
and COOLAHAN, District Judge.*

HENRY THOMAS DOLAN GREGORY M. HARVEY
Criden, Johanson, Dolan, Morgan, Lewis & Bockius
Morrissey & Cook 123 South Broad Street

1424 Walnut Street Philadelphia, PA 19107

Philadelphia, PA 19102

Attorneys for Appellant ELIHU A. GREENHOUSE
1900 Two Girard Plaza
Philadelphia, PA 19102
Attorneys for Appellees

oe Honorable James A. Coolahan, U.S. District Judge for the
District of New Jersey, sitting by designation.

bf

A16
OPINION OF THE COURT
(Filed April 12, 1978)

ADAMS, Circuit Judge.

We are presented here with a clash between two
basic norms in our legal system. One concerns the
valued right of a person to be protected against inaccu-
rate statements harming his reputation. The other
deals with one of the most indispensable freedoms in a
democratic state, namely, that of untrammeled ex-
pression regarding the conduct of a public official. Al-
though the reconciliation of these principles in the con-
text of a particular factual configuration seldom will be
easy, it is essential to the healthy survival of each. That
is the task which this Court is now called upon to per-
form.

The plaintiff ’s objection to the publication he chal-
lenges — a television broadcast — is that it gave rise to
innuendoes which are defamatory of him. Specifically,
Alfred R. Pierce claims that a broadcast by Capital
Cities Communications, Inc., owner and operator of a
Philadelphia television station, WPVI-TV, and Richard
Kellman, a reporter for the station, defamed him by
creating the false impression that he had misused his
public position in seeking private pecuniary gain. In
response, the defendants urge that the First Amend-
ment analysis in the landmark case of New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), and in succeeding
decisions, which protect speech about public officials
absent a showing of “actual malice,” bars recovery in
the present situation.’

' The parties did not address the question whether the appli-
cable state law of defamation gives rise to a tort. Since that issue is
of importance in a full analysis of this case, it is considered in part C
of the opinion.

Al17
A.

Pierce was the Mayor of Camden, New Jersey, for
a ten-year period ending in 1969, and a Commissioner
of the Delaware River Port Authority from june 4,
1962, until May 11, 1970. From January 1, 1969, until
May 11, 1970, he was Chairman of the Authority.”

On November 30, 1973, more than three years
after Pierce was last a member of the Port Authority,
WPVI-TV televised a program, entitled ‘Public Bridges
and Private Riches,’ which explored the activities of
the Port Authority and, in particular, the performance
of Ralph Cornell, then its Chairman.* During the
broadcast, Pierce was named approximately five times
in his capacity as former Camden Mayor and Port Au-
thority Chairman.

Since Pierce’s position is that the television pro-
gram as a whole was defamatory with respect to him,
even if no single remark in it was such, it is necessary
to set forth in some detail its major aspects. The intro-
duction included a statement that, while preparing for
the broadcast, ‘‘Action News reporter, Richard
Kellman” travelled “the bridges of the Delaware River
Port Authority and the high speed roac to profit” for
ninety days.‘ The structure of the Port Authority, the

? The Delaware River Port Authority, a bi-state agency involv-
ing Pennsylvania and New Jersey, has a total of eight commission-
ers representing each of the two participating states. See 36 Pa.
Stat. Ann. §3503, Article II (Purdon’s Supp. 1977).

3 As the district court wrote, the program in question was de-
signed to “explore the activities of the Delaware River Port Author-
ity and the performance of the Chairman, Ralph Cornell; this pro-
gram was part of a series of news broadcasts on issues of public
concern.” In his deposition, Pierce stated that he believed that ‘“‘the
principal focus of the broadcast was Ralph Cornell, with Al Pierce
to be thrown into the meat grinder for good measure.”

‘ The introduction of the broadcast was the following:

When Washington crossed the Delaware River, it was abso-

lutely free. When Action News reporter, Richard Kellman,

crossed the Delaware River, it cost him sixty cents. Washing-

ae

Als

cost of its projects and the use of tolls to pay its debts
were then described.

Following the introduction, a segment of the tele-
cast dealt with a cost increase for steel lattice work
essential to building the superstructure of the Commo-
dore Barry Bridge. A controversy in 1969 among the
members of the Port Authority, relating to the desira-
bility of seeking new bids on the contract for steel, was
elaborated, and statements by two participants in the
dispute, including Ralph Cornell, were juxtaposed.
Then Kellman displayed the minutes of a Port Author-
ity meeting held on September 17, 1969, which re-
corded the votes on a motion for new bids on the steel
contract, and he stated that “New Jersey commission-
ers voting ‘no’ included Chairman Alfred R. Pierce and
the present Chairman Ralph Cornell.” At the conclu-
sion of this portion of the program, Kellman narrated:

And so... as the toll-payers shelled out nickels,
dimes and quarters to pay for the project — some
Port Authority commissioners saw an opportunity
for enormous profits, profits on land deals made
possible by the very bridge motorists would be pay-
ing for well into the year 2000.

After a pause for a commercial announcement,
Kellman noted that there was a close relationship be-
tween the construction of the Commodore Barry
Bridge, which runs from Chester, Pennsylvania to
Bridgeport, New Jersey, and the increase in land
values in the Bridgeport area. The mayor of Bridgeport

Note 4—Continued
ton’s crossing brought us a nation. Kellman’s crossing brought

us some incredible findings that go right into your pockets. For
90 days now, Action News reporter Richard Kellman has
traveled the bridges of the Delaware River Port Authority and
the high speed road to profit. In a minute, Action News pre-

sents PUBLIC BRIDGES AND PRIVATE RICHES but hold onto your dol-

lars. After this program you may want to swim across the Del-
aware River.

A19

was quoted as saying that the values of land in the
town had risen directly as a result of the construction of
the bridge. As to Pierce’s own interest in land in the
vicinity of the Commodore Barry Bridge, Kellman re-
marked:

Among the properties with identifiable owners .. .
is this 90-acre plot of Route 322. . . where the ex-
pressway linking Routes 130 and 295 will be built.
The deed is recorded at the Gloucester County
Courthouse in Woodbury. It shows the property is
owned by Alfred R. Pierce . . . former Mayor of
Camden and Port Authority Chairman at the time
the Barry bridge was approved. On the day Pierce
bought his 90 acres . . . he also bought 22 acres
more... just across the road... . and on the same
day ...in April of last year... he sold the 22 acres
to a corporation that also has the deed to 67 acres
farther up the road where Route 322 crossed Route
295.

The broadcast proceeded to focus on the develop-
ment of the Lindenwold Hi-Speed Line, a mass transit
facility that was built and is operated under the aus-
pices of the Port Authority and runs from Philadelphia
to Lindenwold, New Jersey. Kellman indicated that
“(t)here’s talk of extending the Hi-Speed Line past Lin-
denwold to the Jersey Shore” in the event of the con-
tinued expansion of the area, residentially and com-
mercially. Certain land near the Ferry Avenue station
of the Lindenwold Hi-Speed Line, described as “prime
commercial property,” was said to be owned by “a
combine called ABJ, Inc.,’’ whose shareholders “in-
clude former Camden Mayor and Port Authority
Chairman Alfred R. Pierce.”’

Kellman mentioned a third parcel of real estate in
which Pierce was portrayed as having an interest,
which was said to be located in Woodbury, New Jersey,

se ee ee

A20

near a proposed extension of the Hi-Speed Line. As
Kellman said:

A Port Authority study recommended the Glouces-
ter route to Woodbury where there are five acres of
land owned by a corporation that includes as
shareholders former Camden Mayor and Port Au-
thority Chairman Alfred Pierce and former Port

Authority Commissioner John Crisconi of Phila-
delphia.

In mid-October, Port Authority engineers con-
firmed their recommendation that the Woodbury
station would be built here, adjacent to the prop-
oerty (sic) owned in part by Pierce, Crisconi and
Cornell.

In the aftermath of those remarks, Kellman ques-
tioned Cornell about the “guidelines” he followed in his
work in order to avoid a conflict of interest, and Cornell
replied that he adhered to “the ten commandments.” A
prominent Philadelphia banker, John Bunting, who
has since been appointed to the Port Authority, was
quoted as saying that, in his view, “certainly buying
land raises doubts.”

Kellman then explained that the director of bridges
for the Port Authority, Andrew Ferenz, had been fined
and given a suspended jail sentence for “using Port
Authority building materials on his own home.” Ferenz
was described as the brother-in-law of “former Cam-
den Mayor and Port Authority Chairman, Alfred R.
Pierce.”

On May 16, 1974, five-and-one-half months after
the airing of the broadcast, Pierce filed a complaint,
grounded on diversity jurisdiction, charging that the
television program falsely “accused plaintiff of acting
in his own selfish interest and in abuse of his public
trust.”’ Pierce also alleged that harmful “innuendoes”

al

Se te ar ln Lt ee Re ly tlc

A21

arising from it subjected him to “public ridicule, con-
tempt, and humiliation,” injuring his “good n-.me and
reputation” and thereby defaming him. He sought
compensatory damages in the amount of two million
dollars, as well as punitive damages for the same sum.‘
After the defendants filed an answer, there was exten-
sive pre-trial discovery. On the basis of the information
acquired during discovery, the defendants moved for
summary judgment.

The district court, in an opinion and order dated
February 7, 1977, held that the application of the prin-
ciples enunciated in New York Times required a grant
of summary judgment on behalf of the defendants, for
Pierce had not set forth sufficient facts showing, as a
public official is required to do, that the publication in
question, even if defamatory, was made with “knowl-
edge that it was false or with reckless disregard of
whether it was false or not.’’®

B.

Pierce urges that the district court erred in not fully
considering the harmful innuendoes, or the inferences
drawn from context, that necessarily flowed from the
language and composition of the television broadcast
viewed as a whole.’ If one takes account of such in-

*> To receive punitive damages for a tort, it is required, under
Pennsylvania law, that a plaintiff establish that the tortious con-
duct in question was “outrageous.” See McSparran v. Pennsylva-
nia Railroad Co., 258 F. Supp. 130, 134 (E.D. Pa. 1966); Chambers
v. Montgomery, 192 A.2d 355, 358 (Pa. 1963); Focht v. Rabada,
268 A.2d 157, 159 (Pa. Super. 1970); Restatement, Torts §908(1)
(1939). See generally Medvecz v. Choi, No. 77-1240 (3d Cir., filed
Dec. 22, 1977). Additionally, in a defamation action, the require-
ments of New York Times must of course be met. Cf. Gertz v.
Robert Welch, Inc., 418 U.S. 323, 350 (1974).

® 376 U.S. at 280.

’ The term “innuendo” has two possible meanings in the law of
defamation, one of which is technical and the other of which is not.
The narrow, technical meaning of the term is associated with the
common law system of pleading, under which an “innuendo” was

mw te ae Rt et ee ore

A22

nuendoes, Pierce submits, it can only be concluded
that the requirement of a showing of “actual malice”
established by New York Times does not bar recovery
here. .

It is maintained by Pierce, for instance, that the
discussion in the broadcast of the 1969 vote by mem-
bers of the Port Authority over rebidding a contract for
steel to be used in constructing the Commodore Barry
Bridge raised the incorrect implication that Pierce had
cast his vote in order to expedite the construction, and
thereby accelerate his realization of profits from the
resale of land he had acquired near the bridge. Also,
Pierce charges that the broadcast impliedly suggested
— again, falsely — that he had used knowledge gained
as a public official in making his private acquisitions of
real estate. Further, Pierce insists that the opinions
expressed in the program, such as by John Bunting, to
the effect that land purchases by Port Authority Com-
missioners are improper, and the program’s title, “Pub-
lic Bridges and Private Riches,” tended to defame him
contextually, although admittedly not literally.*®

Defendants’ knowing or reckless disregard of the
falsity of the publication, Pierce suggests, may be in-
ferred from the fact that the broadcast, while it men-
tioned him in connection with three real estate trans-

Note 7—Continued

an explanation of the defamatory meaning of a communication in
light of extrinsic circumstances, the existence of which was
averred to in a prefatory statement called an “inducement.” See Re-
statement, Second, Torts, §563, comment (f) (1977). That is not
the meaning of the word as employed in this opinion. The second,
and here the relevant, meaning of “innuendo” is that which it has

in common language, namely, the insinuation orimplication which -

arises from the literal language used in a statement or set of com-

ments.
* Pierce also objects to the program’s introductory comments

which, he claims, provided the impression of official wrongdoing on
the part of Port Authority members and, consequently, impugned
Pierce’s reputation since he had served on the Authority during the
relevant period of tim..

ee

A23

actions, did not explicitly negative the implication that
Pierce had utilized insider information in buying the
land in question. He points in particular to Kellman’s
deposition and to memoranda written by Kellman to
his superiors during the preparation of the program —
which, Pierce claims, demonstrate that the reporter
fully recognized that Pierce’s purchases occurred after
he had left office and after the public had been told of
the Port Authority projects in question — even though,
in the broadcast, the time sequence was not made
clear.°®

In response, the defendants press the point that
Pierce has not been able to identify any specific state-
ment in the telecast relating to him chat is false other
than the comment — which defendants claim is imma-
terial in any event — that he is the brother-in-law of
Andrew Ferenz.'°® Defendants note that, in this appeal,
Pierce appears to have abandoned the argument that
the remark about Pierce’s relationship with Ferenz
may be construed as having defamed him. Even so,
defendants stress, there is no indication in the record
that they knew or had reason to know of the falsity of

® As Pierce’s brief summarizes the point:

The broadcast named plaintiff as holding a partial ownership

interest in three specifically identified properties, the 90-acre

tract on Route 322, the 5% acres in Woodbury, and the small
parcel at the Ferry Avenue Station of the Hi-Speed Line. As to
every one of these three, plaintiff submits, the defendant

Kellman conceded that by air time of his broadcast he had no

foundation in fact or otherwise for the inference his statement

invited, that plaintiff had used knowledge to which he was
privy in his official position for his private profit.

Thus, Pierce submits, the defendants knew of the falsity of the
innuendoes arising from the utterances made in the television
broadcast, or at the least acted in reckless disregard of their falsity.

‘© It appears from the record that Pierce and Ferenz are mar-
ried to cousins instead of to siblings.

A24

poi indentification of Ferenz as Pierce’s brother-in-
aw."

Further, the defendants contend that the various,
allegedly harmful “innuendoes” ascribed to the broad-
cast are incapable, under New York Times and suc-
ceeding decisions, of giving rise to actionable def-
amation. With respect to the program’s title and its
introduction, which purportedly paint a picture of
less-than-scrupulous activity by members of the Port
Authority, the defendants maintain that such lan-
guage should be perceived as the kind of hyperbole or
colorful phraseology that is protected by the First
Amendment. And as to the observation by Bunting that
in his view purchases of land by Port Authority
Commissioners are questionable, defendants suggest
that such a statement is precisely the sort of opinion
about public affairs which should be accorded con-
stitutional protection.

Also, regarding the plaintiff's contention that de-
famatory innuendoes arose from the defendants’ fail-
ure to negative the possibility that Pierce acted im-
properly by purchasing three parcels of real estate, the
defendants emphasize that such a position depends
fundamentally on an interpretation of various aspects
of the broadcast, not on anything directly said in it. And
when the cited innuendoes are taken in turn, it is ar-
gued, the constitutional standard cannot be met.

Specifically, as to the supposed “innuendo” arising
from the discussion of the vote regarding rebidding of
the contract for steel for the Commodore Barry Bridge,
defendants argue, first, that nothing was said in the
program to the effect that Pierce voted “no” on the re-
bidding proposal in order to speed up the receipt of prof-
its from the sale of land near the bridge. Moreover, it
was stated that Pierce’s purchase of real estate near
the bridge occurred in “April of last year,” which would

'' The record indicates that reporter Kellman was informed by
persons associated with Pierce that Pierce was Ferenz’s brother-
in-law and that Pierce had been so identified in published sources.

ee ee re

A25

have been in April of 1972, the year prior to the broad-
cast. Since the controversy about the rebidding of the
steel contract occured in 1969, defendants argue, it is
plainly unreasonable to conclude that the broadcast,
created the misimpression that Pierce owned the land
on the occasion of the crucial vote.

Because the program did include the time se-
quence of the vote on the steel contract and of Pierce’s
acquisitions of land near the Commodore Barry Bridge,
defendants declare also that it cannot be claimed that
the broadcast raised the inaccurate implication that
Pierce approved the location of the Commodore Barry
Bridge at the time that he owned land near where the
bridge ultimately was built. Again because the rele-
vant timing was stated in the broadcast, defendants
further contend that it is unreasonable to conclude that
it created the false impression that Pierce took advan-
tage of insider information when he initially bought the
real estate near the Commodore Barry Bridge.

As to the other two parcels of land in which Pierce
had an interest — those near an existing, as well as a
proposed, station of the Hi-Speed Line — defendants
concede that the program did not provide the time se-
quence of official action and of Pierce’s purchases. De-
spite that omission, defendants would have us affirm
the district court’s ruling. For, they stress, Pierce was
said to have owned the two plots in question jointly
with Ralph Cornell, then the incumbent Chairman of
the Port Authority. Since such a revelation is the sort of
comment about a public official that should be ac-
corded protection under the First Amendment, and
since some compression of facts relating to an item
covered in a television broadcast is inevitable, defend-
ants argue that no policy of the First Amendment
would be served, and key ones would be undermined,
by concluding that the statements about the Ferry Av-
enue and Woodbury real estate constituted actionable
defamation.

A26

Regarding Kellman’s deposition and his memo-
randa to his superiors, defendants insist that they
fail to display the existence of any knowing or reck-
less disregard of falsity — but rather indicate only
that the defendants wondered whether to charge the
plaintiff with a conflict of interest, and decided ulti-
mately not to do so."*

C.

In resolving this dispute, we initially consider the
governing tort law in order to ascertain whether, in the
present situation, defamation has occurred. For before
investigating whether the constitutional principles of
New York Times operate to bar recovery, it would ap-
pear appropriate to ask whether a state tort has arisen
in the first place. Moreover, since our jurisdiction over
the case is predicated upon the diversity of the citizen-
ship of the parties, under Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938) and its progeny, we are
admonished to start with the applicable state law.'®

A threshold question in this regard is which state’s
law should be utilized. The parties indicated, at oral
argument, that the law of Pennsylvania governs. Such
a position apparently is bottomed on the fact that the
business activities of the television station and the re-

'2 As to Pierce's objection to a circular distributed by the televi-
sion station to potential advertisers, which indicated that the pro-
gram would make revelations about “nepotism” in the operation of
the Port Authority, defendants point out that the use of the word
was clearly not in reference to Pierce but rather, as the program
indicated, was directed at the activities of Chairman Cornell.

'* Although a federal diversity court should not develop a
wholly independent federal standard with which to determine is-
sues of substantive right, it also should not apply state law in an
unduly narrow and mechanical manner. Rather, a federal court
should consider carefully the underlying principles and policies
embodied in state precedents. See Medvecz v. Choi, No. 77-1240,
n.14 (3d Cir., filed Dec. 22, 1977). Cf. Quinones v. United States,
492 F.2d 1269, 1276-79 (3d Cir. 1974).

A27

porter charged with defamation are based in Philadel-
phia and, as a result, that jurisdiction has an abiding
interest in the lawsuit.'* In the absence of any sugges-
tion that there exists here a true conflict of law — that
is, that Pennsylvania law differs from that of another
interested forum having a strong competing stake in
the case arguably outweighing Pennsylvania’s interest
— there is no occasion to diverge from the parties’ posi-
tion. This being so, we must decide what resolution a
Pennsylvania court would reach with regard to the is-
sues in the present appeal.

Pennsylvania has adopted the definition of defa-
mation incorporated in the Restatement, Torts §559
(1938), which provides:

A communication is defamatory if it tends so to
harm the reputation of another as to lower him in
the estimation of the community or to deter third
persons from associating or dealing with him.'®

In Pennsylvania as well as under the Restatement,
whether or not language can reasonably be construed
as defamatory is a question of law to be determined by
a court.'®

Ascertaining whether a communication is capable
of a defamatory meaning depends upon what a recip-

'* See Griffith v. United Air Lines, Inc., 203 A.2d 796, 805
(Pa. 1964) (“. . . the strict lex loci delicti rule should be abandoned
in Pennsylvania in favor of a more flexible rule which permits
analysis of the policies and interests underlying the particular issue
before the court.") See also Cipolla v. Shaposka, 267 A.2d 854,
855-56 (Pa. 1970).

'® See Cosgrove Studio and Camera Shop, Inc. v. Pane, 182
A.2d 751, 753 (Pa. 1962). See also Corabi v. Curtis Publishing Co.,
273 A.2d 899, 904 (Pa. 1971). The definition in the Kestatement,
Torts (1939) was carried over intact to the Restatement, Second,
Torts §559 (1977).

'® See Corabi v. Curtis Publishing Co., 273 A.2d 899, 904 (Pa.
1971) (“If the court determines that the statement is capable of a
defamatory meaning, it is for the jury to determine whether it was

a

. A28

ient “correctly, or mistakenly but reasonably, under-
stands” that the statement was intended to express.'’
It is established that a court should not scrutinize sim-
ply the literal references of the language in question,
but also should weigh the words “together with their
context.” Restatement, Second, Torts §563, Comment
(d). In Pennsylvania, the burden of proving that a
statement is defamatory — as well as establishing its
publication by the defendant, its application to the
plaintiff, and the recipient’s understanding of its de-
famatory meaning — is on the plaintiff.'*

Under Pennsylvania cases handed down after the
Supreme Court decided New York Times, the definition
of defamatory speech has been held to include consid-
eration of the constitutional principles articulated in
that seminal opinion. Thus, even though in analyzing
this case we start with Pennsylvania tort law, no rigid
line of demarcation may be maintained between state
law rules and constitutional norms, for both are inter-
mixed in the Pennsylvania precedents. '®

In Redding v. Carlton,*® it was concluded that the
challenged allegations, which were published during a

Note 16—Continued
so understood by the recipient. . . .”). See also Restatement, Sec-
ond, Torts §614 (1977):
(1) The court determines
(a) whether a communication is capable of bearing a par-
ticular meaning, and
(b) whether that meaning is defamatory.
(2) The jury determines whether a communication, capable of
a defamatory meaning, was so understood by its recipient.

'T Restatement, Second, Torts §563 (1977).

'* See 12 Pa. Stat. Ann. §1584a. (Purdon’s Supp. 1977).

'* This intermixture in the cases represents a certain lack of
analytical clarity, for a defamation decision does involve two sepa-
rate sorts of inquiries: first, is there an infringement of a state-
protected right to be free from a tortious invasion of one’s reputa-
tion?; and second, even if there is, does the First Amendment
nonetheless preclude recovery?

#0 296 A.2d 880 (Pa. Super. 1972).

eee

A29

campaign to prevent the purchase of a proposed build-
ing site for a township headquarters and referred to the
town supervisor’s dual role as supervisor and land-
owner, were not libelous. The defendant had com-.
plained that the supervisor's position evidenced a “con-
flict of interest at the very least, and perhaps much
more.” In analyzing whether such a remark may be
said to be defamatory, the Pennsylvania court declared
that “(f )ree speech would be endangered if innocuous
statements were found capable of possessing a de-
famatory meaning.” It is necessary, the court under-
scored, to decide whether a defamation has occurred in
light of the principles enunciated in New York Times —
namely, that our country has a “profound commit-
ment” to the notion that debate on public matters
should be “uninhibited, robust, and wide-open,” and
that our nation’s political and moral undertaking pre-
supposes that some “unpleasantly sharp attacks on
government and public officials must be protected.”*!
As the court in Redding elaborated:

To prevent a chilling effect on free speech, the Su-
preme Court of Pennsylvania has held that ‘state-
ments which represent differences of opinion or
are annoying or embarrassing, are without more
not libelous.’ Bogash v. Elkins, ... 176 A.2d 677,
679 (1962). Neither is a statement libelous which
is ‘no more than rhetorical hyperbole’ or ‘a vigorous
epithet’ used to describe what the publisher be-
lieves to be another’s extremely unreasonable posi-
tion. Greenbelt Cooperative Publishing Ass’n v.
Bresler, 398 U. S. 6, 14. . . (1970).**

The Redding court, in view of these guiding postu-
lates, determined that the challenged statement that
the town supervisor’s role evidenced a conflict of inter-

*! Id. at 881, quoting New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964).
#2 296 A.2d at 881-82.

= oor 8K SS =

A30

est “at the very least, and perhaps much more” was a
remark characterized by “the type of rhetorical hyper-
bole common to American politics,” and as such it is
protected by the First Amendment.** With regard to the
only misstatement in the defendant’s publication —
namely, the assertion that the plaintiff ’s property was
adjacent to, rather than near, the proposed building
site — the Redding court noted that it is “minor,” and
moreover that it is incapable of bearing a defamatory
meaning since it is analogous to the “rhetorical hyper-
bole” or “vigorous epithet” that commonly is heard in
American public life.**

Additionally, while avowing that the defendant's
comments dealt, at least in part, with factors motivat-
ing the plaintiff ’s actions, Redding emphasized that
errors of fact about such matters are almost unavoid-
able. Redding embraced the comment in Sweeney v.
Patterson** — which the Supreme Court also quoted
with approval in New York Times — where it was
stated that “(e)rrors of fact, particularly in regard to a
man’s mental states and processes, are inevitable
. . . » Whatever is added to the field of libel is taken
from the field of free debate.’** Redding concluded
that to hold that the questioned publications were cap-
able of a defamatory meaning would unduly infringe
upon “the field of free debate.’’?’

On the basis of the analysis in Redding, which ap-
pears consistent with the precepts articulated by the
Pennsylvania Supreme Court in Bogash v. Elkins, 176
A.2d 677, 678-79 (Pa. 1962) and Volomino v. Mes-
senger Publishing Co., 189 A.2d 873, 874-75 (Pa.

** Id. at 882. See Greenbelt Cooperative Publishing Ass'n v.
Bresler, 398 U.S. 6, 14 (1970).

** 296 A.2d at 882.

** 128 F.2d 457 (D.C. Cir. 1942),

** Id. at 458, quoted in New York Times Co. v. Sullivan, 376
U.S. 254, 272 (1964).

*? 296 A.2d at 883.

———

A31

1963), we have concluded that the Pennsylvania
courts would hold that the broadcast of concern here,
in terms of both the specific statements in it as well as
their innuendoes, is incapable of a defamatory mean-:
ing. ;
The only specific error in the program was a com-
ment about Pierce’s relationship with Ferenz, which
suggested that the two men had acloser family tie than
in fact they had — although there was some such con-
nection.** That misstatement certainly is a minor mat-
ter in the context of the broadcast in its entirety. For
the burden of the discussion of the relationship be-
tween the two men was that some interlocking connec-
tions existed among the individuals involved in Port
Authority activities, not that any particular relation-
ship obtained.**

Further, in response to Pierce’s objection to the
implications of some of the program’s language that
may be said to constitute hyperbole — such as the title,
and the introductory remarks that the public should
“hold onto your dollars” and that the reporter inves-
tigating the story pursued the “high speed road to
profit” — it should be noted that such language would
appear to fall squarely within the reach of the princi-
ples elaborated in Redding. Moreover, since Redding
grants protection to the bald assertion of a conflict of
interest, it would seem a fortiori that the Pennsylvania
courts would safeguard the statements about Pierce's
land purchases, which are said by plaintiff only to
carry the implication of a conflict of interest.*”

** See note 10 supra.

** As the defendant has pointed out, Pierce on appeal appears
to have dropped the suggestion that the statement about his rela-
tionship with Ferenz by itself is defamatory. Yet, because this is not
clear from the record, it is necessary to deal with the matter.

*” Furthermore, given the breadth of the principles in Redding,
it cannot be concluded that a Pennsylvania court would rule that
the opinions expressed in the broadcast, such as by Bunting — to

A32

Thus, under Pennsylvania law no defamation has
occurred in the present situation.

D.

But even if we have miscontrued the Pennsylvania
law of defamation, the result in this appeal would not
be altered. This is so since, even if the publication here
were held to be actionable under state law, it neverthe-
less would be privileged on constitutional grounds.*'

Discussions by the Supreme Court of the constitu-
tional privilege for defamatory speech about public of-
ficials have reflected a keen awareness that this area
of the law entails a definite tension between two fun-
damental ideals, and that an accommodation between
them must be struck in each case. On the one hand,
our legal system recognizes the principle that an indi-
vidual should be protected against incorrect state-
ments which dishonor his name.** Indeed, “(s)ociety
has a pervasive and strong interest in preventing and

Note 30—Continued
the effect that land purchases by Port Authority Commissioners are
improper — are undeserving of First Amendment protection.

*' Although, as a general matter, when a case may be disposed
of on non-constitutional grounds, it is appropriate not to reach the
constitutional issue, such a result in this case would be unduly
insensitive to the important First Amendment values at stake here,
and seems inconsistent with the approach of the Supreme Court in
the area of defamation. Cf. Siler v. Louisiana & Nashville Ry. Co.,
213 U.S. 175, 193 (1909). (“When a case in this court can be de-
cided without reference to questions arising under the Federal Con-
stitution, that course is usually pursued and is not departed from
without important reasons.”).

* The individual's interest safeguarded by a state's law of de-
famation is a “relational” one, as it involves the opinion that mem-
bers of a community have of a person and the impact on that opin-
ion of an utterance by the defendant. See W. Prosser, Law of Torts,
$111, at p. 737 (4th ed. 1971). Defamation thus cannot occur when
a statement is made in private that no third party is ever allowed to
hear. Rather, “(a) communication is defamatory if it tends so to

esl

———<—_

A33

redressing attacks upon reputation.” Rosenblatt v.
Baer, 383 U. S. 75, 86 (1966).** On the other hand, our
courts must adhere to the notion, expressed in New
York Times and the cases following it, that free expres-
sion about public matters on the part of citizens and the
press must be zealously guarded.**

The starting point for an attempt to accommodate
both of these precepts, of course, is the Supreme
Court’s elaboration in New York Times of the constitu-

harm the reputation of another as to lower him in the estimation of
the community or to deter third persons from associating or dealing
with him.” Restatement, Second, Torts §559 (1977).

3 Cf. Shakespeare, Othello, III, iii, 155-61 (Iago) (A. Harbage
ed., 1969).

Good name in man and woman, dear my lord,

Is the immediate jewel of their souls.

Who steals my purse steals trash; 'tis
something, nothing,

‘Twas mine, 'tis his, and has been slave to
thousands;

But he that filches from me my gocd name

Robs me of that which not enriches him

And makes me poor indeed.

** See New York Times Co. v. Sullivan, 376 U.S. 254, 269
(1964). See also Robertson, Defamation and the First Amend-
ment; In Praise of Gertz v. Robert Welch, Inc., 54 Tex. L. Rev. 199
200 (1976) (Gertz, like all of the New York Times series of
decisions, attempts to reconcile mutually irreconcilable values: the
polity’s interest in free and full interchange of potentially useful
information and ideas, and the citizen's interest in freedom from
destructive invasions of his reputation, relationships, and personal-
ity.”"); W. Prosser, Law of Torts §111, at 737 (4th ed. 1971) (the law
of defamation “. . . is a curious compound of a strict liability im-
posed upon innocent defendants, as rigid and extreme as anything
found in the law, with a blind and almost perverse refusal to com-
pensate the plaintiff for real and very serious harm. The explana-
tion is in part one of historical accident and survival, in part one of
the conflict of opposing ideas of policy in which our traditional
notions of freedom of expression have collided violently with
sympathy for the victim traduced and indignation at the malign-
ing tongue.” (emphasis supplied). )

—_—

A34

tional framework for defamation analysis. Prior to New
York Times, the Supreme Court had announced in
dicta that libelous words were not safeguarded by the
Constitution.** The Court’s approach was dramatically
altered in 1964 by New York Times which, in the words
of one commentator, “created an entirely new system
of liability for defamation.”’**

In reversing a decision by the Alabama courts hold-
ing a publisher strictly liable for defamatory falsehoods
in an advertisement soliciting funds for the civil rights
movement,*’ New York Times took as its basic premise

8° See Beauharnais v. Illinois, 343 U.S. 250, 266 (1952). See
also Konigsberg v. State Bar of California, 366 U.S. 36, 49 & n.10
(1961); Roth v. United States, 354 U.S. 476, 486-87 (1957); Chap-
linsky v. New Hampshire, 315 U.S. 568, 572 (1942); Near v. Min-
nesota, 283 U.S. 697, 715 (1931). But see New York Times Co. v.
Sullivan, 376 U.S. 254, 269 (1964) (“. . . libel can claim no talis-
manic immunity from constitutional limitations. It must be meas-
ured by standards that satisfy the First Amendment.”). For a re-
view of the modern development of the American law of defama-
tion, see Eaton, The American Law of Defamation Through Gertz
v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L.
Rev. 1349, 1359.

36 Anderson, Libel and Press Self-Censorship, 53 Tex. L. Rev.

422 (1975). See Kalven, The New York Times Case: A Note on “The
Centrai Meaning of the First Amendment,” 1964 Sup. Ct. Rev.
191, 194(“. . . the opinion (New York Times) makes a notable shift
in constitutional idiom .. .’’). Cf. Note, The First Amendment
Overbreadth Doctrine, 83 Harv. L. Rev. 844, 884-90 (1970) (view-
ing New York Times as an uncommon attempt by the Supreme
Court to enunciate in the First Amendment area a determinate rule
of privilege).

%? In New York Times, the Supreme Court reversed a libel
judgment of $500,000 that had been awarded to the police Com-
missioner of Montgomery, Alabama, against four clergymen and
the New York Times. The allegedly defamatory publication was a
paid advertisement soliciting contributions for activities by civil
rights activists in the South. The advertisement charged the police
with brutality and harassment during racial disturbances. The
police commissioner was not named in the advertisement, but was
only linked to the assertions in it by virtue of his official position as
supervisor of the police force.

A35

the central meaning of the First Amendment, which
was said to be “a profound national commitment to the
principle that debate on public issues should be unin-
hibited, robust, and wide-open, and that it may well.
include vehement, caustic, and sometimes unpleas-
antly sharp attacks on government and public offi-
cials.”** The majority rejected the position, advocated
by three concurring Justices,*® that speech defaming
public officials should be accorded absolute immun-
ity.*° Instead, the Court established for such speech a
qualified privilege defeasible only on proof of “actual
malice” on the part of a defendant.*! “Actual malice’”’ is
not at all synonymous with common law malice, which

38 376 U.S. at 270. See id. at 275 (quoting Madison’s statement,
“If we advert to the nature of republican government, we shall find
that the censorial power is in the people over the Government, and
not in the Government over the people.’’). See also Kalven, The
New York Times Case: A Note On “The Central Meaning of the
First Amendment,” 1964 Sup. Ct. Rev. 191, 208-09. See generally
J. Miller, Crisis In Freedom: The Alien and Sedition Acts (1951);
Brant, Seditious Libel: Myth and Reality, 39 N.Y.U.L. Rev. 1
(1964).

3® Justices Black, Douglas and Goldberg urged that there
should be a rule of absolute immunity for speech defaming public
officials. See 376 U.S. at 293 (Black, J., concurring), 297 (Goldberg,
J., concurring in result). Justice Douglas joined both concurring
opinions.

4° Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) (a
rule of absolute immunity “would, indeed, obviate the fear that the
prospect of civil liability for injurious falsehood might dissuade a
timorous press from the effective exercise of First Amendment
freedoms. Yet absolute protection for the communications media
requires a total sacrifice of the competing value served by the law of
defamation.’’).

“A plaintiff must prove “actual malice” with “convincing
clarity.”” See New York Times Co. v. Sullivan, 376 U.S. at 285-86
(“(W)e consider that the proof presented to show actual malice
lacks the convincing clarity which the constitutional standard de-
mands .. .”). See also Gertz v. Robert Welch, Inc., 418 U.S. 323,
342 (1974).

A36

includes spite or ill-will.*? What is meant by the term in
the defamation context is either that the defendant
knew of the falsity of the communication in question or
that he published the commeni in reckless disregard of
its truth or falsity. **

New York Times thus stands, inter alia, for the
proposition that a calculated lie about a public official,
or a statement uttered out of reckless inattention to its
falsity, is beyond the pale of constitutional protection.
See Garrison v. Louisiana, 379 U. S. 64, 75 (1964). In
laying down this standard, the Court took pains to
guard against too sweeping a definition of actionable
defamation. It stressed that, as a general matter, “er-
roneous statement is inevitable in free debate,”** and
that speakers or publishers, if exposed broadly to liabil-
ity for defamation, might well engage in self-
censorship. Such self-checking could be expected to
follow as much from the threat of a sanction as from

*2 See Garrison v. Louisiana, 379 U.S. 64, 73 (1964) (“Debate .

on public issues will not be uninhibited if the speaker must run the
risk that it will be proved in court that he spoke out of hatred; even
if he did speak out of hatred, utterances honestly believed contri-
bute to the free interchange of ideas and the ascertainment of
truth.’’). See also L. Tribe, American Constitutional Law §12-12,
at 634-35 n.21 (1978).

*’ See 376 U.S. at 279-80 (a public official is prohibited from
recovering damages for a defamatory publication bearing on his
official conduct “unless he proves that the statement was made
with ‘actual malice’ — that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.”’).

There can be little doubt that a certain confusion has arisen as
a result of the use of the term “actual malice” in referring both to
knowing as well as to reckless disregard of falsity. Nevertheless,
the use of the term in legal literature and defamation decisions has
persisted. Thus, in this opinion, following New York Times, the
phrase is utilized as a short-hand expression for knowing or reck-
less inattention to the falsity of a publication.

** Id. at 271. See also Gertz v. Robert Welch, Inc., 418 U.S.
323, 341 (1974) (“The First Amendment requires that we protect
some falsehood in order to protect speech that matters.”).

6 ee

A37

the actual enforcement of one,** for not only is it fre-
quently difficult to prove the truth of a defamatory
communication, ** but also the risk incurred in attempt-
ing to establish truth before fallible juries or judges is
considerable.‘? Consequently, New York Times deter-
mined not to shield speech about public officials
merely on a case-by-case basis, but rather to enunciate
a general protective principle designed to leave room
for courts to guard the individual against malicious at-
tacks on his reputation and, at the same time, to pre-
vent undue “chilling effects” on such expression. **
The meaning of the Supreme Court’s ‘actual
malice” requirement was amplified in Garrison v.
Louisiana,*® where the Court distinguished between
an “honest utterance, even if inaccurate,” which is to
be constitutionally safeguarded, and the “use of calcu-
lated falsehood” which is not.5° The knowing and de-

‘Ss See L. Tribe, American Constitutional Law §12-12, at 634
(1978); Anderson, Libel and Press Self-Censorship, 53 Tex. L. Rev.
422, 424-26, 430-34 (1975) (emphasizing the considerable financial
cost of defending defamation suits).

‘© Truth, of course, is a defense to a charge of defamation. See
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 489-90 (1975); Re-
statement, Second, Torts, §581A (1977); W. Prosser, Law of Torts
$116, at 796-99 (4th ed. 1971). See also Keeton, Defamation and
Freedom of the Press, 54 Tex. L. Rev. 1221, 1241-45 (1976).

*? See Kaiven, The New York Times Case: A Note on “The
Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev.

191, 212.

*® Cf. Dombrowski v. Pfister, 380 U.S. 479, 489 (1965). See
also Gertz v. Robert Welch, Inc., 418 U.S. 323, 343-44 (1974) (to
scrutinize and weigh the competing interests in every libel case
“would lead to unpredictable results and uncertain expectations,
and it could render our duty to supervise the lower courts unman-
ageable. . . . [Wje must lay down broad rules of general applica-
tion.”’).

** 379 U.S. 64 (1964). In Garrison, the Court held that the rule
of New York Times limits state power to impose criminal sanctions
for criticizing the official conduct of public officers.

5° Id. at 75.

A38

liberate lie about a public official is not accorded First
Amendment protection, the Court in Garrison indi-
cated, because it is ‘at odds” with the norms of a
democratic polity and with the requisites of “orderly”
social, political and economic change.*' Garrison in-
voked as support for this idea the dictum in Chaplinsky
v. New Hampshire® that certain types of utterances,
such as a conscious prevarication about a public offi-
cial, ‘‘are no essential part of any exposition of ideas,
and are of such slight social value as a step to truth
that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality.’’**

In the present case, as had been noted, the only fal-
sity identified in the broadcast is a statement regarding
Pierce’s relationship with Ferenz. However, as to this
remark, there is no indication that any calculation or
deliberateness on the defendants’ part entered into the
act of publication. Because there was a basis on which
Kellman could have reasonably believed that Pierce was
Ferenz’ brother-in-law,*‘ the comment is most properly

‘' Id. Cf. Brennan, The Supreme Court and the Meiklejohn
Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 18-19
(1965) “[T]he New York Times principle has an important qualifi-
cation; it does not bar civil or criminal libel actions for false criti-
cism of the official conduct of a public official if that criticism is
made with knowledge of its falsity or in reckless disregard of
whether it was false or true. The underpinning of that qualification
is the ‘redeeming social value’ test.’’). See also Stromberg v.
California, 283 U.S. 359, 369 (1931) (“The maintenance of the
opportunity for free political discussion to the end that government
may be responsive to the will of the people and that changes may be
obtained by lawful means, an opportunity essential to the security
of the Republic, is a fundamental principle of our constitutional
system.’’).

** 315 U.S. 568 (1942), quoted in Garrison v. Louisiana, 379
U.S. 64, 75 (1964).

5? 315 U.S. at 572.

** See note 11 supra.

et a es Bet

A39

understood as an “honest utterance, even if inac-
curate,” and therefore as constitutionally protected.
Further, the Supreme Court has made it clear that
the “recklessness” component of “actual malice” canot »
be inferred simply from the failure to act in conformity
with the conduct of a prudent or reasonable person. In
New York Times itself, the Court held that the plaintiff
did not satisfy his burden of proof because the record
did not demonstrate that the publisher was aware of
the likelihood that he was circulating false informa-
tion. That was the case even though it might have been
negligent not to have checked the accuracy of the copy of
the advertisement against stories in the newspaper's
own files.5> And in St. Amant v. Thompson,*® the
Court emphasized that in order to establish ‘actual
malice,” one must show more than negligence:

... reckless conduct is not measured by whether a
reasonably prudent man would have published, or
would have investigated before publishing. There
must be sufficient evidence to permit the conclu-
sion that the defendant in fact entertained seri-
ous doubts as to the truth of his publication. Pub-
lishing with such doubts shows reckless disre-
gard for truth or falsity and demonstrates actual
malice. (emphasis supplied)*’

Consequently, in determining whether a defendant has
been reckless, the operative inquiry is whether he pub-
lished the statement even though he “in fact enter-
tained serious doubts as to the truth of his publica-
tion.’”®*

‘> See 376 U.S. at 287-88 (“We think the evidence against the
Times supports at most a finding of negligence in failing to discover
the misstatements .. .”’).

** 390 U.S. 727 (1968).

*? Id. at 731.

** The Supreme Court in St. Amant explicitly recognized that
the emphasis on a defendant's subjective doubt under the standard

A40

There is no indication in the present record that the
defendants ‘‘entertained serious doubts” about the
truth of any remark in the broadcast. As defendants
have pointed out, the Kellman memoranda and the
other materials adduced during discovery on which
Pierce seeks to rely do not demonstrate that they knew
that utterances in the broadcast were of questionable
validity. To the contrary, these memoranda establish
that they considered whether to charge Pierce — and
Cornell — with utilizing insider information for private
gain, and decided on the basis of the data before them
not to do so.*®

Moreover, the publication of hyperbole, even if
caustic and irritating, cannot by itself support the in-
ference that the publisher evidenced “actual malice”’.
In Greenbelt Cooperative Publishing Assn. v.
Bresler,®® the plaintiff complained that he had been
defamed by statements reported in defendant’s news-
paper which charged him with “blackmail.’’*' Not-
withstanding the use of such an inflamatory term, the
Supreme Court held that “as a matter of Constitutional
law, the reference to ‘blackmail’ in these circum-

Note 58—Continued
of knowing or reckless publication of falsity might be said to en-

courage publishers not to investigate the accuracy of defamatory
statements, but concluded that this was an acceptable side-effect
— to the extent it exists — in the context of public debate on public
issues. See 390 U.S. at 731-32. For the point that reckless disregard
of falsity requires a high degree of subjective awareness of falsity,
see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 332 (1974).

** At most, on the facts here, it miglit be said that the defend-
ants acted carelessly or negligently. Bu‘. this alone, quite plainly, is
not enough. For “. . . the stake of the people in public business and
the conduct of public officials is so great that neither the defense of
truth nor the standard of ordinary care would protect against self-
censorship and thus adequately implement First Amendment
policies.” St. Amant v. Thompson, 390 U.S. 727, 731-32 (1968).

*© 398 U.S. 6 (1970).

*! Id. at 7-8. In Greenbelt, the relevant state law made black-
mail a crime.

te ee es ae 8 ee ee

A41

stances was not slander when spoken, and not libel
when reported” in the newspaper. The rationale for
this result was that “even the most careless reader
must have perceived that the word was no more than .
rhetorical hyperbole, a vigorous epithet used by those
who considered Bresler’s negotiating position ex-
tremely unreasonable.” The Court refused to permit
the imposition of liability on the newspaper in such
circumstances because it would “subvert the most
fundamental meaning of a free press, protected by the
First and Fourteenth Amendments.”’**

It appears that, in the situation under considera-
tion, some of the statements in the program’s introduc-
tion as well as its title would be construed by a reason-
able television viewer as being essentially hyperbole.
As such, they must be accorded the full measure of
constitutional protection mandated by Greenbelt,

The further claim by Pierce is that ‘actual malice”’
may be inferred from the fact that the defendants pub-
lished remarks giving the impression, without saying
so explicitly, that he was engaged in a pattern of using
insider knowledge for private gain through real estate
transactions — even though, in fact, he had purchased
the land in question after leaving public office. That
argument, by its own terms, concedes that no specific
statement about the land transactions was incorrect. It
rather rests upon the notion that “actual malice” is

*? Id. at 14. Thus, the Supreme Court in Greenbelt flatly re-
jected the contention that, by reporting comments including the
word “blackmail” — which the defendants were said to have known
was a crime that Bresler had not committed — defendants could be
held liable for knowing or reckless disregard of falsity.
~ ** At oral argument, counsel for Pierce suggested that it is in-
appropriate to employ the term “hyperbole” in the context of a tele-
vision broadcast which purported, at least in part, to be a documen-
tary program relating to issues of public concern. Yet, not only is
the application of the principle of Greenbelt not limited in such a
manner, but also its logic would appear to compel a broader render-
ing of it than Pierce's counsel would allow.

A42

established by the fact that the defendants failed to
rule out the possibility that Pierce used insider know]-
edge when buying land whose value was affected by
decisions of the public agency on which he sat.

Pierce’s contention thus hinges primarily on the
negative implications said to flow from the program’s
treatment of his ownership of the three plots of land.
Regarding the first parcel, however, as has been noted,
the broadcast did provide the correct time sequence of
Pierce’s membership on the Port Authority and his
later purchase of the real estate. In light of the fact that
. the publication was literally correct, it cannot fairly be
said that, from the discussion about the land near the
Commodore Barry Bridge, one may infer ‘actual
malice” on the part of the defendants.

Mere lack of a statement of such time sequence as
to the other two parcels of land in which Pierce had an
interest cannot be held to establish the existence of
“actual malice” on the defendants’ part. For the re-
marks about Pierce’s interests in the real estate on
Ferry Avenue and in Woodbury explicitly included the
phrase “former Camden Mayor and Port Authority
Chairman.” (emphasis supplied) We cannot agree
with the plaintiff ’s suggestion that “actual malice” is
demonstrated simply by the fact that the modifier
“former” was not placed before the title “Port Author-
ity Chairman,” but was situated before ‘‘Camden
Mayor.” Although there is arguably some ambiguity in
the program regarding Pierce’s membership on the
Port Authority at the time of the real estate transac-
tions, that alone, in our view, does not suffice to sus-
tain the burden of establishing with convincing clarity
knowing or reckless disregard of falsity.**

** It is also implausible to say that the defendants’ “actual
malice” with respect to Pierce may be inferred from the fact that
the television program included a comment by Bunting that buying
land as a Port Authority Commissioner is questionable behavior.
This is apparently an accurate portrayal of a citizen's views about

wd we Se eer ot a oe

A43

Beyond the details relating to the various state-
ments in the broadcast are fundamental principles of
First Amendment jurisprudence compelling the con-
clusion that no actionable defamation occurred here. '
Since Pierce was a public official and did have, or at
least appeared to the public to have, “substantial re-
sponsibility for or control over the conduct of govern-
mental affairs,”** his claim lies within the heartland of
defamation actions covered by New York Times. In ad-
dition, there is no doubt that the remarks in the telecast
about Pierce were pertinent to his official conduct, for
“anything which might touch on an official’s fitness for
office is relevant.’’** The fact that the program was not
shown until after Pierce was out of office does not
undermine these points.*’ Consequently, the strong
First Amendment policy of protecting the free flow of
ideas about public officials and their activities — even
when some vehement or unpleasantly sharp comments
may be involved — is fully operative.

an issue of public importance, and nowhere does the comment
make reference to any particular individual.

** Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

** Garrison v, Louisiana, 379 U.S. 64, 77 (1964).

*’ The television program was in large part about decisions
made at the time that Pierce was in office, and thus his official role
was directly relevant. The passage of some three years between the
time of Pierce's departure from the Port Authority and the airing of
the broadcast did not, by itself, strip Pierce of his status as a “public
official” for purposes of analyzing this case. Cf. Time, Inc. v.
Johnston, 448 F.2d 378, 381 (4th Cir. 1971) (“[MJere passage of
time will not necessarily insulate from the application of New York
Times Co. v. Sullivan, publications relating to the past public con-
duct of then a ‘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 pub-
lic career,"’), See also Bamberger, Public Figures and the Law of
Libel; A Concept in Search of a Definition, 33 Bus. Law. 709,
723-24 (1978). It should be noted also that Pierce never suggested
that he is not a public official in the context of the present appeal.

A44

In view of these circumstances, and because the
media such as are involved in this case personify the
First Amendment values in the free exchange of ideas
and open debate about public officials,** the publica-
tion challenged by Pierce should be protected by the
First Amendment. Any other conclusion would have
“disquieting implications for criticism of governmental
conduct,’’®* for it would likely lead to the kind of chil-
ling effect on the media that New York Times and its
_ successors directly seek to avoid.’°

E.

Thus, under Pennsylvania law as well as under
federal constitutional standards, there is no basis for
holding that the district court erred in granting the de-

** See Robertson, Defamation and the First Amendment: In
Praise of Gertz v. Robert Welch, Inc., 54 Tex. L. Rev. 199, 218-19
(1976), quoting Justice Stewart, “Or of the Press”, 26 Hastings
L.J. 631, 634 (1975):

[A] free press was not just a neutral vehicle for the balanced

discussion of diverse ideas. Instead, the free press meant or-

ganized, expert scrutiny of government. The press was a con-
spiracy of the intellect, with the courage of numbers. This for-
midable check on official power was what the British Crown
had feared — and what the American founders decided to risk.

(emphasis supplied)

** New York Times Co. v. Sullivan, 376 U.S. 254, 291 (1964).

7 The constitutional privilege enunciated in New York Times
should not be conceived of by the media as a justification for care-
less reporting. Nonetheless, we must decide the issues put to us
under the law as articulated first by the Pennsylvania courts and
then by the Supreme Court, and in light of that and our review of
the record, we have concluded that no recovery is warranted here.
See New York Times, 376 U.S. at 285 & n.26. See also Beckley
Newspapers Corp. v. Hankes, 389 U.S. 81, 82 (1967) (“[W]e have
undertaken an independent examination of the record as a whole
‘so as to assure ourselves that the judgment does not constitute a
forbidden intrusion on the field of free expression.’ "’).

—— ae ——_ oe

A45

fendants’ motion for summary judgment. Con-
sequently, the court’s judgment will be affirmed.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1334%3A1. Public record. Not legal advice.