Petition — Cohn v. National Broadcasting Co.

Supreme Court brief1980

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OCT 3 1980

IN THE MICHAEL ROA 7.

Supreme Court of the United States

October Term, 1980

R@Y M. COHN, G. DAVID SCHINE and

SAXE, BACON & BOLAN, P.C.,

Petitioners,

-against-

NATIONAL BROADCASTING CO., INC.,

UNIVERSAL CITY STUDIOS, INC.,

and GEORGE ECKSTEIN,

Respondents.

i, U.S.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK

LANG & NESCI, P.C.

Attorneys for Petitioners

271 North Avenue

New Rochelle, N.Y. 10801

(914) 632-4747

John F. Lang

Vincent P. Nesci

Howard F. Husum,

Of Counsel.

a J

QUESTIONS PRESENTED

1. Whether the libels alleged

by the petitioners were sufficient to

withstand a motion to dismiss the entire

complaint; and

2. Whether the "public figure"

petitioners should have been allowed pre-

trial discovery to inquire into the edi-

torial process of the defendants, in

order to acquire evidence of actual

malice.

TABLE OF CONTENTS

Opinion Ne Sa alee we ona ee ee 0%

PURESOTCCIOR cc bccceeverivenevessens 2

Constitutional Provisions Involved.. 3

Pee CE PROCES. Soke tkecewccce ee

Reasons for Granting the Writ....... 13

Conclusion....... eb dbabhewesovenesa an

TABLE OF CITATIONS

Buckley v. Littell, 394 F.Supp.

918 (SDNY STOR kahs ce eb ehanescotag, 20

Gertz v. Robert Welch, Inc.,

~ 94 S.ct. 2997, 41 L.Ed. 789

ETE) . occ s EAs Se NR 6

Herbert v. Lando, 441 U.S. 153,

99 S.ct. 1635, 60 L.Ed.2d 115

REALE Era: TF is, 1 2 19

November v. Times, Inc., 13 NY2d

175, 244 NYS2d 309, 194 N.E.

126 (FAG lee ee eeeeeve eeerevee? 21

Rinaldi v. Holt, Rinehart, 42 NY2d

369 | ES i a irr 13

Time, Inc. v. Firestone, 424 U,S.

488, 96 S.Ct. 958, 47 L.Ed.2d

154 DT Uist e thes 6 6 6 ob e wees pee 22

aa:

APPENDIX

Page

Appendix "A" - Court of Appeals

DOGESLOR ee sicesecccveds 14

Appendix "B" - Special Term Deci-

CAG Sie 3 db oe wh 5% 3a

Appendix "C" - Appellate Division

DORA OaOs os ce s'teacces 478

Appendix "D" - Extension of Time

to File - Order...... 65a

IN THE

SUPREME COURT OF THE UNITED STATES

ROY M. COHN, G. DAVID SCHINE and

SAXE, BACON & BOLAN, P.C.,

Petitioners,

-~against-

NATIONAL BROADCASTING CO., INC.,

UNIVERSAL CITY STUDIOS, INC.,

and GEORGE ECKSTEIN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK

The petitioners, Roy M. Cohn,

G. David Schine, and Saxe, Bacon & Bolan,

P.C., pray that a Writ of Certiorari

issue to review the opinion and judgment

of the Court of Appeals of the State of

New York rendered in these proceedings

on June 5, 1980,

OPINION BELOW

The opinion of the Court of

Appeals, as yet unreported, appears at

Appendix A, infra, pp. la-2a. The opin-

ion of the Supreme Court of the State of

New York, County of New York, is unre-

ported, and appears at Appendix B, pp.

3a-46a, The Appellate Division modified

the judgment of the Supreme Court of the

State of New York, in an opinion reported

in 67 A.D. 140, and appearing at Appendix

C, Pp. 47a-64a,

JURISDICTION

The order or judgment of the

Court of Appeals of the State of New

York was entered on June 5, 1980, See

Appendix A, p. la. An order extending

time to file petition for Writ of Cer-

tiorari to October 3, 1980 was signed

September 5, 1980. See Appendix D, pp.

65a-66a. The jurisdiction of this Court

is invoked under 28 U.S.C. §1257(3),

CONSTITUTIONAL PROVISIONS INVOKED

Constitution of the United

States, Amendment XIV, §1 ...nor shall

any state deprive any person of life,

liberty or property without due process

of law...

Constitution of the United

States, Amendment I ...or abridging the

freedom of speech, or of the press...

STATEMENT OF FACTS

Petitioners Roy M, Cohn (Cohn),

G. David Schine (Schine) and Saxe, Bacon

& Bolan, P.C. (Saxe) commenced this ac-

tion, by service of a summons and com-

plaint, to recover damages for defama-

tion and invasion of privacy caused by

a film entitled "Tail Gunner Joe" which

was produced and/or exhibited to Ameri-

can audiences by the National Broadcast-

ing Co., Inc. (NBC), Universal City

Studios, Inc. (Universal) and George

Eckstein (Eckstein) (collectively re-

ferred to herein as "defendants").

The defendants moved to dis-

miss both the defamation and privacy

counts for failure to state a cause of

action.

The New York Supreme Court,

Special Term, Part I (Hon. Max Bloom,

J.) denied the motion to dismiss the

first cause of action (the defamation

claim) and granted the motion to dismiss

the second cause of action (the privacy

claim) (see appendix, pp. 3a~-46a),

On appeal, the Appellate Divi-

sion, First Department (Mr, Justice Fein)

affirmed the Special Term Decision dis-

missing the second cause of action; but

modified the Special Term decision, on

the law, and granted the motion to dis-

miss the first cause of action (see

Appendix, pp. 47a-64a). By so deciding,

the Appellate Division effectively issued

a final judgment on the issue of liabil-

ity and substantially modified the order

of the Special Term.

On appeal, the Court of Appeals

affirmed the decision of the Appellate

Division for the reasons stated in the

opinion of Mr. Justice Fein.

The facts relevant to the his-

tory of this case are as follows: Plain-

tiff Cohn was engaged as Chief Counsel

to the United States Senate Permanent

Subcommittee on Investigations of the

Committee on Governmental Operations

during 1953 and 1954 and is now success-

fully engaged in the practice of law.

Plaintiff Schine served as an unsalaried

Chief Consultant for the above-mentioned

Subcommittee during 1953 and 1954. Saxe

is now and has been for many years a pro-

fessional corporation successfully en-

gaged in the practice of law and the

employer of Cohn,

Upon becoming aware that the

defendants planned to make a film en-

titled "Tail Gunner Joe" (a depiction

of the life of Senator Joseph McCarthy),

plaintiffs Cohn and Schine wrote to

Herbert Schlosser, President of NBC, and

sent copies of their letters to Univer-

sal. Cohn and Schine therein explicitly

withheld their consent to the use of any

actors to represent them and requested,

in the interest of fairness and accuracy,

to be given an opportunity to view the

said movie with an eye towards contribu-

ting to the correction of any inaccura-

cies or misrepresentations,

In response, plaintiff Cohn

received a letter from Sheldon M.

Mittleman, attorney for Universal, who

stated that, "it would be an injustice

to seek advice and opinions from only a

select group", indicating that Universal

obviously felt they had the "facts" they

wanted and did not intend to conform

their film to facts that might be sup-

plied by Cohn, who, as a participant

in the events depicted, could easily

have spotted inaccuracies and misrepvre-

sentations contained therein.

Cohn, in subsequent letters

to Mittleman and to Sam Gerber, Assist-

ant Counsel to NBC, expressed his -dis-

appointment in defendants‘ responses.

Subsequently, on or about Feb-

ruary 6, 1977, NBC caused to be broadcast

"*s

over its national network a three-hour

film entitled "Tail Gunner Joe", which

depicted events occurring before and

leading up to and including the so-

called "Army-McCarthy Hearings" in 1954.

Within said film actors were used to

portray Cohn and Schine.

Pursuant to the instances of

defamation and invasion of privacy con-

tained in said film, plaintiffs commenced

this action by service of a Summons and

Complaint on defendants on or about April

14, 1977 and service of an Amended Com-

plaint on or about July 1l, 1977.

The subject libelous assertions

are, in brief:

1, That Cohn and Schine en-

gaged in a campaign to burn books of

reputable and weil-known authors;

2. That Cohn was at fault in

the Army-McCarthy hearings for the "Fred

Fisher" incident (in which McCarthy named

a young lawyer named Fisher a communist

on television), when in fact Cohn had

protested the incident to McCarthy, was

not responsible for it and had attempted

to prevent the incident. The sequence

neatly omits Cohn's note of protest to

McCarthy;

3. That Cohn had no legitimate

qualifications to act as Chief Counsel to

the Subcommittee;

4. That Cohn was standing at

the gates of Fort Dix the morning Schine

was inducted, implying that Cohn had

nothing better to do;

5. That Cohn was bent on the

destruction of individual freedoms,

Such an assertion is the clear implica-

tion anc intendment of the cumulative

portrayal of Cohn in the film; and

6. In referring to McCarthy,

one of the fictional characters of the

film comments, "he himself caught no

communists, found no traitors, uncovered

no subversives, not one", clearly im-

plying that McCarthy and his associates

(including Cohn and Schine) were in-

volved in an unjustified witch hunt.

In sum, it is asserted that

each of the above-noted allegations are

false. Cohn is not a hater of litera-

ture, a book burner, was not responsi-

ble for the "Fisher" incident, is not

a ruthless man bent on destroying indi-

vidual freedoms, and is not an unquali-

fied attorney guilty of incompetence and

impropriety in representing his client,

the United States of America,

Prior to the airing of said

film, defendants, although in receipt

of offers by Cohn and Schine to assist

in the correction of inaccuracies and

misrepresentations, made no attempt to

verify the truth of the subject port-

rayals with the plaintiffs, who were

clearly historical experts on the sub-

ject matter.

By an order of Justice Max

Bloom, dated March 9, 1978 and entered

March 13, 1978, responding to defendants".

motion to dismiss the complaint, the

second cause of action was dismissed,

The Court stated that, "in the absence

of showing that the advertising was

consciously false, i.e. that it was

uttered with knowledge of its falsity

or with reckless disregard of the truth,

or that the actors selected were such

as to construe a defamatory act, no

cause of action is made out," (Appendix

p. 40a),

The Appellate Division modified

the Special Term decision in a decision

dated April 5, 1979, to grant the motion

to dismiss the first cause of action.

In dismissing plaintiffs' defamation

claim the Appellate Division stated:

"no showing of falsity and no

showing that the film was com-

posed and thereafter exhibited

with actual malice, The gen-

eral conclusory assertion that

it was maliciously published

is insufficient". (Appendix,

Pp. 62a.)

The Court of Appeals, ina

decision dated June 5, 1980, unanimously

affirmed the Appellate Division decision,

stating that "we agree with the Court

below that none of the individual pas-

sages of which the plaintiffs complain

are defamatory to them. We would add

only that in our view the cumulative

effect of all such passages cannot be

said to be defamatory." (Appendix, p.

la). The Court of Appeals, implicit in

its decision, also denied plaintiffs the

opportunity to conduct pre-trial discov-

ery toward the issue of actual malice.

REASONS FOR GRANTING THE WRIT

1. The Federal Questions Herein

Have Been Decided Below in a

Way Which is Not in Accord

with the Applicable Decisions

of This Court. . e

A “public figure" plaintiff

must establish not only defamation but

also that the defamation was accomplished

with actual malice - i.e., with knowledge

that the subject defamation was false or

with reckless disregard of whether it

was false or not. Rinaldi v. Holt, Rine-

hart, 42 NY¥2d 369 (1975).

Thus, in Buckley v. Littell,

394 F. Supp. 918 (S.D.N.Y. 1978), the

Court stated that the "reckless disre-

gard requirement has been defined to

mean that the defendant must be shown

to have had an awareness of probable

falsity" (at 931). That Court went on

to say, at page 932, that:

"There is no doubt that evi-

dence of negligence, of motive

and of intent may be adduced

for the purpose of establish-

ing, by cumulation and by

appropriate inferences, the

fact of a defendant's reck-

lessness or of his knowledge

of falsity." Goldwater v.

Ginzburg, 414 F.2d 324 (2d

Cir. 1969), cert. denied, 396

U.S. 1049, 90 S.Ct. 701, 24

L.Ed.2d 695 (1970).

Clearly, this "reckless disregard re-

quirement" is not one which must be

satisfied prior to the beginning of

pre-trial discovery, at the time of a

premature motion to dismiss.

Indeed, in Herbert v. Lando,

441 U.S. 323. 99 S.Ct. 1635, 41 L.Ed.2d

115 (1979), this Court specifically held

that a "public figure" plaintiff assert-

ing a libel claim could not be barred by

First Amendment principles from inquir-

ing, during pre-trial examination, into

the editorial process of defendants in

order to acquire evidence of actual

malice:

"It is also untenable to con-

clude from our cases that,

although proof of the neces-

sary state of mind could be

in the form of objective cir-

cumstances from which the

ultimate fact could be infer-

red. plaintiffs may not in-

quire directly from the def-

endants whether they knew or

had reason to suspect that

their damaging publication

was in error. In Butts, for

example, it is evident from

the record that the editorial

process had been subjected to

close examination and that

direct as well as indirect

evidence was relied on to

prove that the defendant maga-

zine had acted with actual

malice, The damages verdict

was sustained without any sug-

gestion that plaintiff's proof

had trenched upon forbidden

areas." (at 124).*

This Court specifically recog-

nized that a libel plaintiff is entitled

* Citations to the Lando decision are

from 60 L.Ed.2d No. 1, May 25, 1979 (pp.

to undertake pre-trial examination in

order to establish the critical element

of malice:

"We are thus being asked to

modify firmly established con-

stitutional doctrine by placing

beyond the plaintiff's reach a

range of direct evidence rele-

vant to proving knowing or

reckless falsehood by the pub-

lisher of an alleged libel,

elements that are critical to

plaintiffs such as Herbert.

The case for making this modi-

fication is by no means clear

and convincing and we decline

to accept it.

"In the first place, it is

plain enough that the suggested

privilege for the editorial

process would constitute a sub-

stantial interference with the

ability of a defamation plain-

tiff to establish the ingredi-

ents of malice as required by

New York Times. As respondents

would have it, the defendant's

reckless disregard of the truth,

a critical element, could not

be known by direct evidence

through inquiry into the

thoughts, opinions and conclu-

sions of the publisher but

could be proved only by objec-

tive evidence from which the

ultimate fact could be infer-

red. It may be that plaintiffs

will rarely be successful in

proving awareness of falsehood

from the mouth of the defendant

himself, but the relevance of

answers to such inquiries,

which the District Court recog-

nized and the Court of Appeals

did not deny, can hardly be

doubted. To erect an impenetr-

able barrier to the plaintiff's

use of such evidence on his

side of the case is a matter

of some substance, particularly

when defendants themselves are

prone to assert their good-

faith belief in the truth of

their publications, and libel

plaintiffs are required to

prove knowing or reckless false-

hood with ‘convincing clarity',

New York Times v. Sullivan, 376

U.S., at 285-286." (at 129-130).

The Lando decision is directly

applicable to the case at bar and, we

submit, the action by the Court of

Appeals cannot be squared with the Lando

requirement, in that the plaintiffs

should have been permitted discovery

into the "good-faith" of the defendants

in publishing the subject portrayals.

Indeed, this Court expressly

: 18

recognized in Lando that pre-trial exam-

ination of a libel defendant may furnish

proof of malicious intent that might

otherwise be lacking:

"But as we have said, our cases

necessarily contemplate examina-

tion of the editorial process to

prove the necessary awareness of

probable falsehood and if indir-

ect proof of this element does

not stifle truthful publication

and is consistent with the First

Amendment, as respondents seem

to concede, we do not understand

how direct inquiry with respect

to the ultimate issue would be

substantially more suspect.

Perhaps such examination will

lead to liability that would

not have been found without it,

but this does not suggest that

the determinations in these in-

stances will be inaccurate and

will lead to the suppression

of protected information. On

the contrary, direct inquiry

from the actors, which affords

the opportunity to refute in-

ferences that might otherwise

be drawn from circumstantial

evidence, suggests that more

accurate results will be ob-

tained by placing all, rather

than part, of the evidence be-

fore the decisionmaker." (at

131; emphasis ours.)

Lando establishes that a libel

plaintiff who has presented some evidence

of damages to reputation and of actual

malicious intent -- as plaintiffs have

done here -- is entitled to a pre-trial

examination to bolster and augment its

claim of libel and actual malice. Accord-

ingly, we submit that, at a minimum, plain-

tiffs herein were entitled and should

have been allowed to conduct pre-trial

examinations of defendants in order to

garner additional evidence of libel and

malice.

Justice Fein specifically cen-

tered his decision in the Appellate

Division on the absence of actual malice

(Appendix p. 62a). Such discovery would

be necessary, in light of Gertz v. Robert

Welch, Inc,, 418 U.S. 323, 94 S.Ct, 2997,

41 L.Ed. 789 (1924) to satisfy the neces-

sity of showing actual malice.

Further, the Court of Appeals

incorrectly stated that the passages com-

plained of failed to raise a claim of

actionable libel (Appendix p. 2a). An

actionable libel may be created by a

cumulative portrayal. As stated in

Buckley v. Littell, 394 F.Supp. 918, 925

(S.D.N.Y. 1975):

"It is necessary to make

a judgment based upon the

alleged libelous material as

a whole, rather than on the

basis of isolated or detached

individual sentences or state-

ments. November v. Time, Inc.,

13 N.Y.2d 175, 178, 244 N.Y.S.

2d 309, 194 N.E.2d 126 (1963).

The test of whether a passage

is libelous or not is what the

overall effect would be upon

an ordinary reader. Everett

v. Gross, 22 A.D.2d 257, 254

N.Y.S.2d 561, 563, 254 N.Y.S.

2d 561 (lst Dept, 1964)."

In light of the assertions of

the said film (including accusations of

book burnings and witch hunts), the

Court of Appeals obviously erred in

their assertion that Cohn and Schine

were not defamed. It is well settled

that an individual's interest in his own

reputation is a basic concern. Time,

Inc. v. Firestone, 424 U.S. 488, 96 S.Ct.

958, 47 L.Ed.2d 154 (1976). The Court

of Appeals recognized that this concern

is of utmost importance when, in Novem-

ber v. Times, Inc., 13 NY¥2d 175, 244

NYS2d 309, 194 N.E. 126 (1963), the

Court stressed that a court should not

take the case from the jury simply be-

cause the subject portrayal could be

taken in an inoffensive sense:

"The courts ‘will not strain'

to interpret such writings ‘in

the mildest and most inoffen-

sive sense to hold them non-

libelous' (Mencher v. Chesley,

297 N.Y. 94, 99, 75 N.E.2d 337,

259). The words are to be con-

strued not with the precision

expected from lawyers and

judges but as they would be

read and understood by the pub-

lic to which they are addressed,"

(at 178)

The Special Term recognized

that there was a triable question pre-

sented as to whether Cohn or Schine were

in fact defamed (Appendix p. 42a). The

very fact that there was a difference of

opinion between the Special Term and the

Court of Appeals, underlines the exist-

ence of triable guestion of fact, espe-

cially in the light of Time, Inc. v.

Firestone, supra. The unnecessary and

highly damaging depiction of the "Fred

Fisher" incident and the "“book-burning"

scene can have no other purpose than to

create the malicious impression that

Cohn and Schine were unrestrained zealots

bent on destroying American institutions.

CONCLUSION

For the reasons stated above, a

Writ of Certiorari should issue to re-

review the Judgment and Opinion of the

Court of Appeals of the State of New

York.

Respectfully submitted,

LANG & NESCI, P.C.

Attorneys for Petitioners

271 North Avenue

New Rochelle, N.Y. 10801

(914) 632-4747

John F. Lang

Vincent P. Nesci

Howard F. Husum,

Of Counsel.

APPENDIX

APPENDIX A

STATE OF NEW YORK

COURT OF APPEALS

1 No. 278

Roy M. Cohn, et al., MEMORANDUM

Appellants, This memorandum

is uncorrected

Vv. and subject to

revision before

National Broadcast- publication in

ing: Co. , caes, the New York

et al., Reports.

Respondents.

(278)Louis Biancone, John F. Lang,

Vincent P. Nesci, & Howard F. Husum,

NYC, for appellants.

John C. Sabetta, NYC, for

respondents.

MEMORANDUM

The order appealed from should

be affirmed for the reasons stated in

the opinion of Mr. Justice Fein at the

Appellate Division (67 AD2d 140).

We agree with the court below

that none of the individual passages of

which plaintiffs complain are defamatory

as to them. We would add only that in

our view the cumulative effect of all of

such passages cannot be said to be de-

famatory. While it is true that the

courts "'will not strain’ to interpret

[allegedly defamatory works] ‘in their

mildest and most inoffensive sense to

hold them nonlibelous'" (November v Time

Inc,, 13 NY¥2d 175, 178, quoting Mencher

v Chesley, 297 NY 94, 99), it is also

true that courts will not strain to find

a defamatory interpretation where none

exists (see Tracy v Newsday, Inc., 5

NY2d 134).

* * * * * * * * *

Order affirmed, with costs, in a memo-

randum. All concur.

Decided June 5, 1980

APPENDIX B

CAL. NO. 82-1/17/78

SUPREME COURT: NEW YORK COUNTY

SPECIAL TERM : PART I

ROY M. COHN, et al.,

Plaintiffs, Index

Number

-against- 07079/77

NATIONAL BROADCASTING CO.,

jin=ces OC G1...

Defendants.

Se ee x

MAX BLOOM, J.:

Defendants, National Broadcast-

ing Co., Inc., (NBC) and Universal City

Studios, Inc., (Universal) move to dis-

miss the complaint herein upon the

ground that it fails to set forth a

cause of action (CPLR 3211[7]), or, in

the alternative, requiring plaintiffs

separately to state and number the mat-

ters set forth in the complaint (CPLR

30]4) and to strike certain allegations

contained therein as scandalous or pre-

judicial (CPLR 3024[b]). One George

Eckstein is named as an additional def-

endant. However, he is not joined in

the motion. Whether he has yet been

served with process is not indicated,

The plaintiffs are Roy M. Cohn,

G. David Schine and Saxe, Bacon and

Bolan, P.C., of which, the plaintiff

Cohn is a senior partner. The complaint

to which the motion is directed sets

forth two causes of action, and is based

upon the production by Universal of a

film entitled "Tail Gunner Joe" and the

exhibition of that film by NBC. The

first count is bottomed upon an alleged

conspiracy to defame plaintiffs Cohn,

Schine, and Saxe, Bacon and Bolan, P,C.,

and seeks compensatory damages of

$5,000,000 and punitive damages of

$15,000,000. The second cause is predi-

cated upon an alleged invasion of pri-

vacy, and seeks additional compensatory

damages of $5,000,000 and exemplary dam-

ages of $15,000,000.

The period covered by the con-

ceoveres; the McCarthy era, is one of

the more somber periods in twentieth

century American life. The recurrence

of these periods has been part of the

American phenomena. Since the October

(Bolshevik) Revolution of 1917, these

items of turbulence have involved fringe

elements in our society and have re-

volved about the Communist threat to the

western world. Nevertheless, and be-

cause these actions have invariably

called into question, and trespassed

upon, the civil rights and liberties of

all, they have frequently occupied cen-

ter stage. The Palmer raids, and its

New York throwoff, the Lusk Committee,

the exclusion, in 1921 of the five

Socialists from the New York State

Assembly; the case of Sacco and Vanzetti;

and the Rapp-Coudert Committee have all

had their passionate defenders and vio-

lent detractors, The demagogues spawned

by the Great Depression, the most promi-

nent of whom was the late Senator Huey

P. Long, and who included, among the

more notorious, Father Charles E. Cough-

lin, Dr. William Wirt, Gerald L.K. Smith,

Gerald B. Winrod, and Elizabeth Dilling

commanded much attention even though

they attracted few followers, Organiza-

tions such as the Khaki Shirts, the Sil-

ver Shirts, the Crusaders for Economic

Liberty, the American Vigilantes and

Sentinels of the Republic claimed their

moments in the spotlight and then dis-

appeared. Less in the public view were

the literary and philosophical fascists

among whom were numbered, Ezra eid:

Lawrence Dennis and Seward Collins.?

The Hitler-Stalin Pact of Aug-

ust, 1939, orchestrated the anger against

Communism and those thought to be Commu-

nists. Even persons who believed that

the Soviet experience might furnish sii

suggestions for overcoming our own eco-

nomic malaise were revolted by this ex-

hibition of great power duplicity. The

anger was exacerbated when, less than a

week after the pact, Hitler's hordes

l- For an excellent short dissertation

on the Depression Demagogues see Schles-

inger "The Politics of Upheaval"

(Houghton, Mifflin Co., 1960), pp. 16-

207.

See also Williams "Huey Long" (Alfred A.

Knopf,. 1969).

invaded Poland, unleashing the most

frightful and bloody war in the oft

anguished history of mankind. The rage

became greater when, before the month

was out, Poland was divided between the

Third Reich and the Soviet Union, thus

disclosing the full range of Soviet

hypocrisy and deceit.

The following spring Hitler

ravaged Europe. Belgium, Holland and

France fell beneath his iron heel.

Only the moat which separated England

from France, the English Channel, pre-

vented invasion of the British Isles.

For more than a year the toothless lion

reeled under the relentless onslaught of

the Luftwaffe. Then, almost without

warning, Hitler turned east. In the

early morning of June 21, 1941, Hitler

began his war against Russia, and with

the attack, the mounting hatred of

Communism began to subside. Prime Min-

ister Churchill led the way in his

address to the British people on the

evening of June 21. In that speech,

he recalled to his people that "No one

has been a more consistent opponent of

Communism that I have for the past

twenty-five years. I will unsay no

word that I have spoken about it. But

all this fades away before the spectacle

which is now unfolding***",

"I have to declare the deci-

sion of His Majesty's Government--and

I feel sure it is a decision in which

the great Dominions will in due course

concur--for we must speak out now at

once, without a day's delay. I have to

make the declaration, but can you doubt

what our policy will be? We have but

one aim and one single irrevocable pur-

pose. We are resolved to destroy Hitler

10a

and every vestige of the Nazi regime.

From this nothing will turn us--nothing,

We will never parley, we will never nego-

tiate with Hutler or any of his gang. We

shall fight him by land, we shall fight

him by sea, we shall fight him in the

air, until, with God's help, we have rid

the earth of his shadow and liberated its

peoples from his yoke. Any man or state

who fights on against Nazidom will have

our aid***, That is our policy and that

is our declaration. It follows, there-

fore, that we shall give whatever help

we can to Russia and the Russian people.

We shall appeal to all our friends and

allies in every part of the world to take

the same course and pursue it, as ''e shall

faithfully and steadfastly to the end. "*

2- Churchill, "The Grand Alliance",

(Houghton, Mifflin Co., 1950), pp. 371l-

Vy: &

lla

The attack on Pearl Harbor

came less than six months later. The

terrible privations of the Russian pe)-

ple? and the fact that we were allied

in waging war against a common foe,

muted almost completely, criticism of

the Soviet regime.

As the war moved beyond the

battle of Stalingrad, with the Nazi

armies in retreat and the Russians in

pursuit, it became apparent that the

lands in eastern Europe "liberated" by

the Soviets were to become part of Mos-

cow's colonial empire. As the iron

fist of Hitler faded in these areas,

the iron fist of Stalin became more

apparent. Nor was the appetite of Rus-

sia sated by her eastern European

-_——-— -— lcrlUcrhOrlUcrOrlUcrOrlcr rr lhlUcrOrlcrOrlhlUrhoOr OOF lc lc Or lhlUrhOr lh OR lh lh lh

3- Salisbury "The 900 Days" (Harper &

Row, 1969); Werth, "Russia at War"

(Dutton, 1964).

l2a

vonquests. As the battle ceased, the

chaos left by the war in France, Italy

and Greece gave her the opportunity to

fish in troubled waters.

Thus began the "cold war".4

With the victory of the Communists in

China,>

the American mood was crysta-

lized and the stage set for the events

which form the basis of this suit.

The late Joseph R. McCarthy,

about whom this suit revolves, first

sought election to public office in 1936,

as the Democratic candidate for District

Attorney in Shawano County, Wisconsin.

4- Halle, "The Cold War as History"

(Harper & Row, 1967)

5- White and Jacoby, "Thunder Out of

China" (William Sloane Associates 1946);

for a history of events immediately prior

to the takeover by the Chinest communists

see Tuchman, "Stillwell and the American

Experience in China" (Macmillan, 1970).

l3a

Defeated in this first run, he met with

greater success in 1939 when he was elec-

ted a judge of Wisconsin's Tenth Judicial

Circuit. In June 1942, he applied for

enlistment in the MaRine Corps, into

which he was accepted the following month

with the rank of lieutenant.

Much has been written about

the McCarthy war record. Indeed, it

forms part of the central allegations of

the complaint. Whether he was ever

wounded in combat and whether he ever

used the phrase that he carried “ten

pounds of shrapnel" in his leg is an

issue that is still much debated. There

is evidence that he suffered an injury

to his foot in a “shellback" ceremony

while crossing the equator in the sea-

plane tender "Chandeleur". McCarthy

himself disclaimed any shrapnel wound in

a television interview, contending that

l4a

the injury occurred during an airplane

accident.

Be that as it may, in 1944,

before his resignation from the Marine

Corps had become effective, McCarthy

stood for the Republican nomination for

U.S. Senate. He was defeated in the

primary by the then incumbent, the late

Alexander Wiley. Two years later, he

entered the Republican primary for the

same office against the late Robert M.

LaFollette, Jr. It is intriguing to

note that in that campaign, the State

Council of the CIO, then Communist con-

trolled, angered by LaFollette's unalter-

able anti-Communist stance, threw its

complete support to McCarthy, who won

the primary by a total of 5,378 votes,

approximately 1 1/4 per cent of the vote

cast,

The first three years of the

15a

McCarthy era were uneventful. Not until

February, 1950, did he project himself

into the national limelight by his

charges of “card carrying Communists"

in the State Department. While the nunm-

ber varied from speech to speech, the

charge remained the same. It is in

January, 1953, however. when he became

Chairman of the Committee on Government

Operations and Chairman of its Permanent

Subcommittee on Investigations, that

the story depicted by the complaint in

this action begins, Plaintiff Cohn was

designated as Chief Counsel to the Per-

manent Subcommittee on Investigations

and plaintiff Schine served as an unsal-

aried Chief Consultant to the Subcommit-

tee.

To say that the period which

followed was one of the most tumultuous

in twentieth century American history

l6a

would be grossly to understate the case.

Reputations were ruined and careers des-

troyed. Not until the Army-McCarthy

hearings and the resultant vote ee

United States Senate to censure the Sen-

ator from Wisconsin did some semblance

of sanity return to the nation. °

This capsulated summary of a

portion of the history of our time and

the actions of Joseph R. McCarthy in the

context of that history is merely to

demonstrate the confluence of time and

the man and the heritage they left as

they fed each upon the other.

Iil

The evaluation of the competing

-_- = -—- lc rel rl rr lc rl rl lc rr lc rl rl lc rll rl rll rl rhc lh Oo

6- The entire 92 page April, 1954 issue

of "The Progressive" is devoted to an

in-depth study of Senator McCarthy and

his methods. While the magazine, foun-

ded by Robert M. LaFollette in 1909 is

defunct, copies are still to be found.

17a

social interests of the individual in

the sanctity of his reputation and the

right of the media to publish has long

been a vexing problem. It was inevit-

able that the sometimes subtle tensions

between the law of defamation and the

First Amendment would not survive a

later period of turmoil, the civil

rights revolution of the 1960s. The

seminal decision (New York Times Co.,

v. Sullivan, 376 U.S. 254), arose out

of the publication of an advertisement

in the New York Times seeking to enlist

support for "***thousands of Southern

Negro students [who] are engaged in

widespread non-violent demonstrations

in positive affirmation of the right to

live in human dignity as guaranteed by

the U.S. Constitution and the Bill of

Rights". (376 U.S, at p. 256). Part of

the advertisement referred to truckloads

18a

of police, armed with shotguns, ringing

the campus of Alabama State College in

Montgomery. Another portion adverted to

the fact that Dr. Martin Luther King had

been arrested on seven occasions. Sulli-

van, who was Commissioner of Public

Affairs, a position which encompassed

control of the city's police, utilizing

certain inaccuracies in the ad and claim-

ing that he had thereby been libeled,

sued and recovered judgment in the sum

of $500,000. It was obvious that ver-

dicts of this magnitude would soon com-

pel a newspaper to impose self-censor-

ship. Thus, the Court was brought face-

to-face with the competing interests.

In determining that "***the background

of profound national commitment to the

principle that debate on public issues

should be uninhibited, robust and wide-

open, and that it may well include

19a

vehement, caustic and sometimes unpleas-

ant sharp attacks on government and pub-

lic officials" (376 U.S. at p. 270), it

came down heavily on the side of free

speech. Recognizing that “erroneous

statement is inevitable in free debate,

and that it must be-protected if the

freedoms of expression are to have the ,

breathing space that they need to sur-

vive" (376 U.S. at pp. 271, 272), it

held that "[t]Jhe constitutional guaran-

tees require,***a federal rule that

prohibits a public official from recov-

ering 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 wih reck-

less disregard of whether it was false

or not" (376 U.S, at pp. 279, 280). It

is noteworthy that Sullivan limits its

20a

applicability to the official conduct of

public officials.

A scant two years later the

Supreme Court expanded its definition of

"public official" to include "***at the

very least***those among the hierarchy

of government employees who have, or

appear to the public to have, substan-

tial responsibility or control over the

conduct of governmental affairs" (Rosen-

blatt v. Baer, 383 U.S. 75, 85). In

that case, the person allegedly defamed

was the supervisor of a recreational

area, who was held to be within the am-

bit of the definition of "public offi-

cial".

In Curtis Publishing Co., v.

Butts, and Associated Press v. Walker,

decided in a single opinion (388 U.S.

130), the emphasis shifted. Butts was

the athletic director of the University

2la

of Georgia. Although Georgia is a state

university, Butts was employed by the

Georgia Athletic Association, a private

corporation rather than by the State of

Georgia. He was charged in an article

in the Saturday Evening Post with "fix-

ing" a football game with the University

of Alabama. Suit was brought and Butts

was awarded a verdict of $60,000 in com-

pensatory damages and in addition, very

substantial punitive damages.

Walker, a retired general in

the U.S. Army, was charged in a newspa-

per dispatch, with encouraging the riot-

ers who sought to prevent the enrollment

of James Meredith at the University of

Mississippi. Walker brought suit which

resulted in a verdict of $500,000 in

compensatory damages, and in addition,

punitive damages. Recognizing that

neither Butts nor Walker were public

22a

officials, the Court noted the need to

recast the limited scope of Times Co.,

v. Sullivan. Accordingly, it gave con-

stitutional dimension to new doctrine

that a public figure "***who is not a

public official may also recover damages

for a defamatory falsehood whose sub-

stance makes substantial danger to

reputation apparent. on a showing of

highly unreasonable conduct constituting

an extreme departure from the standards

of investigation and reporting ordinar-

ily adhered to by responsible publish-

ers" (388 U.S. at p. 155).

Butts and Walker were followed

by Rosenbloom v. Metromedia, Inc., (403

U.S. 29). It would be pointless to en-

deavor to dissect the five separate

opinions, none of ‘which commanded the

authority of a majority of the Court.

It is sufficient only to point out that

23a

it introduced a new element into a situ-

ation already bedeviled by complexity.

To the elements of public officer and

public figure it added the subjective

standard that the event reported be of

public or general interest. "The pub-

lic's primary interest is in the event;

the public focus is on the conduct of

the participant and the content, effect

and significance of the conduct, not

the participant's prior anonymity or

notoriety". (403 U.S. at p. 43).

Next in the line of key deci-

sions is Gertz v. Robert Welsh, Inc.,

(418 U.S. 323). Gertz involved an

attorney who was neither a public offi-

cer nor a public figure, He represented,

in a civil suit, the family of a young

man who had been shot and killed by a

policeman. Respondent published "Ameri-

can Opinion", a vehicle for the John

24a

Birch Society, in which Gertz was charged

with being a member of numerous organiza-

tions alleged to be Communist, and sought

to link him with "***the Communist attack

on the Chicago police during the 1968

Democratic Convention" (418 U.S. at p.

325), all in the endeavor to establish a

conspiracy to frame the police officer.

Petitioner sued and recovered a verdict

of $50,000 which was set aside by the

trial court, who directed the entry of

a verdict in favor of defendant upon the

authority of Times Co., v. Sullivan,

even though Gertz was neither a public

official nor a public figure. In hold-

ing that Times Co., v. Sullivan (supra)

and Curtis Publishing Co., v. Butts

(supra), had no application to a situa-

tion involving a private citizen, the

Court took occasion to note that public

officials and public figures had greater

25a

access to the media and, therefcre, were

less vulmerable to injury. A private in-

dividual, on the other hand, "***has

relinquished no part of his interest in

the protection of his own good name, and

consequently, he has a more compelling

call on the courts for redress or injury

inflicted by defamatory falsehood" (418

U.S. at p. 345). In leaving to the

states the power to regulate the legal

remedy for actionable defamation in such

cases, the Court sought to eliminate

from consideration the Rosenbloom empha-

sis on whether the issue involved in the

publication is a matter of general or

public interest. Under Gertz, two rules,

each with different consequences, run

parallel to each other. One involving

public officials (Times Co,, v. Sullivan,

supra), and public figures (Curtis Pub-

lishing Co,, v. Butts, supra) and one

26a

involving private individuals.

The final holding in this

chain of cases is Time, Inc., v. Fire-

stone (424 U.S. 448). It adds little

to the law, holding only that parties

to a private divorce action do not be-

come public figures, no matter how

lofty their social status and no matter

how lurid the circumstances of the

divorce. The reversal of the Florida

courts, which correctly followed Gertz,

was bottomed upon procedural irregulari-

ties.

The courts of this state have

followed Times Co., v. Sullivan and its

progency faithfully and closely (Rin-

aldi v. Holt, Rinehart and Winston, Inc.,

42 N Y 2d 369; James v. Gannett Co., 40

N Y 2d 415). Indeed, they have gone be-

yond the limitations set by Gertz and

in the area left to the states for

27a

development of their own tort doctrine,

they have held that those who partici-

pate, either as principals or as paid

advisors, in the debate on issues of

grave general interest subject them-

selves to public scrutiny even though

they are neither public officers or

public figures. Freedom of speech is

essential to the preservation of the

democratic process. On issues of great

public concern opinions may, and fre-

quently do, differ widely. Untrammelled

debate, with a right of free expression

exercised within constitutional limits,

is to be encouraged to facilitate an

exchange of information and the reaching

of an informed, though not necessarily a

wise, conclusion. Opinions on public

issues should not be unduly limited in

expression. Unless their public voice

is premised upon false facts, evidence

28a

a reckless disregard for the truth, or

are actuated by malice, the right to

speak is secured and protected by the

First Amendment" (Cole Fisher Rogow,

Inc., v. Carl Ally, Inc., 29 AD 2d 423,

at p. 429; affd. 25 N Y 943).

The charge of violation of the

right of privacy falls into a somewhat

different category. Although the claim

is bottomed on §§50 and 51 cf the New

York Civil Rights Law, which prohibit

the use of another's name, portrait or

picture for advertising or to promote

the sale of goods, it became apparent

once Times Co., v. Sullivan (supra) had

been decided, that the statutes were in-

vested with constitutional subtleties,

Thus, in Spahn v. Julian Messner, Inc.,

(18 N Y 2d 234), the privacy doctrine

29a

was construed so that the statutory

rights granted by §§50 and 51 were of

little value to’a newsworthy person.

Only where the reporting is distorted

and largely fanciful is refuge given

by the protective umbrella of the law.

Spahn was taken to the Supreme Court

which, between the determination by the

Court of Appeals and consideration by

the Supreme Court, had decided Time,

Inc., ¥V. Hill (3805 U.S. 374). The

Supreme Court remanded Spahn I to the

Court of Appeals (387 U.S. 239) for

reconsideration in the light of Hill.

Time Inc., v. Hill (supra), involved a

family, who resided in Pennsylvania and

who were held hostage by some escaped

convicts for some nineteen hours, Some

six months later, a fictionalized ver-

sion of their ordeal was published under

the title "The Desperate Hours". Subse-

30a

quently, the book was made into a play.

Nowhere in the book or the play was the

name of the Hill family mentioned and

many of the events portrayed differed

from those which had occurred.

The review of the play by Time,

Inc., and the pictures published in the

Magazine concerning it specifically

linked the play to the Hill family. The

suit for invasion of privacy followed,

Relying greatly upon Times Co., v, Sul-

livan, (supra), the Supreme Court held

that the "***constitutional protections

for speech and press preclude the appli-

cation of the New York statute to redress

false reports of matters of public in-

terest in the absence of proof that the

defendant published the report with

knowledge of its falsity or in reckless

disregard of the truth" (385 U.S. at pp,

387, 388). It is interesting to note,

3la

however, that, in contradistinction to

Times Co., v. Sullivan (supra), the em-

phasis was placed on the nature of the

event, i.e. whether the matter was of

public interest, rather than on the in-

volvement of a public official.

When Spahn II came before the

Court of Appeals, it held (21 N Y 2d 124,

app. dism, 393 U.S. 1046), that where a

public figure is involved, recovery is

not justified unless "***the presenta-

tion is infected with material and sub-

stantial falsification and that the work

was published with knowledge of such

falsification or with a reckless disre-

gard for the truth" (21 N Y 2d, at p.

127). Thus, the privacy doctrine, al-

though it involves a wholly different

concept, was assimilated to the tort of

defamation, The spotlight was again

focused upon the person whose privacy

32a

was invaded and whether the presentation

is infected with material and substan-

tial falsification. Indeed, truth

becomes a defense in an arena in which

truth or falsity should be immaterial.

Hill was followed by Cantrell

v. Forest City Publishing Co., (419 U.S.

245). There, the newspaper published a

human interest story about a widow and

her five children and the dire poverty

which followed in the wake of the death

of the husband and father who was killed

in the collapse of a bridge along with

forty-three other people. The jury

awarded plaintiff a verdict for compen-

satory damage, the Court having with-

drawn the issue of punitive damages from

their purview, The issue before the

Supreme Court centered on whether the

verdict could be permitted to stand in

light of the trial court's implied hold-

33a

ing that no “actual malice" was shown,

In justifying the jury verdict, the

Supreme Court noted that the story con-

tained calculated falsehoods and the

jury was plainly justified in finding

that Eszterhas had portrayed the Cant-

rells in a false light through "knowing

or reckless untruth" (419 U.S. at p.

253). Here, the Supreme Court adopted

the reasoning of our Court of Appeals in

Spahn II.

The final case in this line is

Cox Broadcasting Corp., v. Cohn (420

U.S. 469). A Georgia statute made it a

crime to disclose the name of a rape vic-

tim, Cohn was the father of a daughter

who had been raped and did not survive

the incident. During the course of the

criminal proceedings against the defend-

ants, a representative of the broadcast-

ing company ascertained the victim's

34a

name from the indictment. Thereafter,

in a report of the proceedings, the vic-

tim's name was broadcast. Cohn sued for

infringement of his privacy and recovered

judgment. The Supreme Court, after in-

terlocking the right of privacy and

defamation, decided not to determine the

broad constitutional issue presented to

it. It reversed the Georgia courts on

the narrow ground that once the name of

the victim was emblazoned on the public

record, it could, thereafter, be repor-

aor by any one, provided it was reported

truthfully.

Meeropol v. Nizer (560 F.2d

1061, app. pending, __U.S.__), involved

both defamation and invasion of privacy.

Both, seemingly, were intermingled in a

niaead cause of action. The Meeropols

are the natural children of Ethel and

Julius Rosenberg, who were executed in

35a

1953 after conviction for conspiring to

transmit to the Soviet Union information

relating to the national defense. Def-

endant Nizer wrote "The Implosion Con-

spiracy", which reviewed the trial and

which was published in 1973. Suit was

instituted shortly thereafter premised

upon the claim that Nizer's account was

inaccurate and fictionalized. In hold-

ing that the publication fell within the

ambit of constitutional protection

accorded to publications infringing pri-

vacy, the Court correctly noted that the

matters covered by the book were within

the orbit of public interest (Time, Inc.,

v. Hill, supra). However, it went fur-

ther and noted that constitutional

immunity also obtained because the per-

sons involved were public figures.

With this as a basis, we pro-

36a

ceed to examination of the complaint,

The first cause of action alleges that

defendants entered into a conspiracy to

defame plaintiffs. Pursuant to the con-

spiracy Universal was to produce and NBC

was to broadcast over television the

film "Tail Gunner Joe" which was inten-

ded to be "a character assassination of

the late Senator Joseph McCarthy and the

principal figures involved with McCarthy

especially during the so-called Army-

McCarthy hearings, including Cohn and

Schine.

Cohn and Schine, upon learning

of the projected film by letters sepa-

rately addressed by each of them to NBC

and Universal, expressly withheld their

consent to the use of any actors to rep-

resent them and requested an opportunity

to view the movie so that they might con-

tribute "to the correction of inaccuracies

37a

or misrepresentations". NBC referred

each letter to Universal, with refused

the offer.

It is further averred that

"Tail Gunner Joe" distorted and falsi-

fied the events depicted by consequence

of which plaintiffs were defamed. Spe-

cific instances of this alleged distor-

tion and falsification are set forth.

These include two conversations between

the late Robert F,. Kennedy, then counsel

to the minority members of the Permanent

Subcommittee on Investigations of the

Committee on Government Operations and

Jean Kerr, then Administrative Assistant

to Senator McCarthy, both of which it is

claimed, never occurred. The first con-

versation concerned Cohn and the brief

tidbit set forth indicates merely that

Kennedy did not like Cohn and that Cohn

did not laugh much. In the second con-

38a

versation Kennedy refers to Schine as

"young Lichinvar". Another instance of

alleged defamatory conduct deals with a

brief comment that the day following

Schine's induction into the Army and his

shipment to Fort Dix, Cohn was at the

gates of the camp.

Of greater importance is an

allegation, supported by a textual ex-

cerpt from the film, which indicates

that the investigation of the U.S. In-

formation Agency's Overseas Libraries

was part of a campaign to burn books

authored by Mark Twain, Stephen Vincent

Benet, Sherwood Anderson and others.

Additionally, there is included, a

textual excerpt from the film which

raises serious claims as to the

McCarthy war record, It is clearly

derogatory and, very obviously, is

meant to be so. The first count con-

39a

cludes with the charge that these state-

ments were false and defamatory and were

published "with actual malice and with

reckless disregard for their truth or

falsity" and demands compensatory and

exemplary damages.

The second cause of action

alleges that the use of the names of

Cohn and Schine in advertising the film

and in having actors portray them in

direct contravention of their expressed

wishes constituted an invasior. of their

privacy under §§50 and 51 of the New

York Civil Rights Law. This, they con-

tend, entitles them to compensatory and

exemplary damages.

Since the motion is less dif-

ficult of disposition as to the second

cause of action, we turn first to that.

Although the second count includes repe-

tition and reallegation of the substan-

40a

tive allegations of the first cause of

action, it is too obvious for comment

that the specific matters claimed to be

defamatory in the film can have no

application to the advertisement of the

film or the selection of actors to port-

ray Cohn and Schine. Hence, the claim

of invasion of privacy must rest on the

fact of such advertising and in the

selection of the actors, As Time, Inc.,

v. Hill (supra) makes clear, this, stand-

ing alone, is not enough. The matter

remains one of intense public interest.

In the absence of a showing that the ad-

vertising was consciously false, i.e.,

that it was uttered with knowledge of

its falsity or with a reckless disregard

of the truth, or that the actors selec-

ted were such as to constitute a defama-

tory act, no cause of action is made out

(Spahn v. Julian Messner, Inc,, 21 NY

4la

2d 124; app. dism. 393 U.S. 1046)./

The first count represents a

more difficult situation. If all that

was presented were the two Kennedy-Kerr

conversations and the Fort Dix incident,

there would be no difficulty in holding

that, to the ordinary observer, the

overall effect of these scenes would

not be defamatory (see Everett v. Gross,

22 AD 2d 257). However, these scenes

do not stand alone. The "book-burning"

scene specifically refers to both Cohn

and Schine. Whether, in the context of

7- While, under Time, Inc., v, Hill

(385 U.S. 374), the emphasis is an in-

fringement of privacy case is on the

event, it is plain that a public offi-

cial has a lesser expectancy of privacy

than has a purely private individual.

First, a public official courts the

limelight, Accordingly, the public

aspects of his life are fair game for

the media. Secondly, accountability

for his actions depend on widespread

publicity. Finally, his fitness to

remain or continue in public office

justifies disclosure.

42a

that scene, the ordinary observer of the

film would conclude that they were among

the book-burners, becomes a question

which must be left to the trier of the

fact in the context of the evidence sub-

mitted. Inasmuch as it is alleged that

this scene is false and defamatory and

was included with actual malice and with

reckless disregard for its truth or fal-

sity, the pleading is sufficient to meet

constitutional standards.

The final matter to be consid-

ered is that branch of the motion seek-

ing to strike certain allegations of the

complaint as scandalous and impertinent

and to compel plaintiffs to state their

causes of action separately from one

another.

A. The first paragraph sought

to be stricken is paragraph 23 which

deals, almost entirely, with McCarthy's

43a

war service. There are only two items

in that almost seven page paragraph

which do not. One is a brief conversa-

tion between McCarthy and Miss Kerr in

which Miss Kerr inforus McCarthy that

Vice President Nixon called to inform

him that he had been appointed Chairman

of the Committee on Government Opera-

tions and could, if he wanted to, be-

come Chairman of its Permanent Subcom-

mittee on Investigation, The other

deals with a British writer (identified

by plaintiffs as Cedric Seifvaes), who,

was deported, allegedly by reason of the

efforts of McCarthy.

Most of the paragraph deals

with a period entiation the relation-

ship of Cohn and Schine with McCarthy.

The remainder makes no mention of

either Cohn or Schine,

Reputation is a personal qual-

44a

ity. The purpose of an action for

defamation, to the extent that the ac-

tion is now cognizable in law, is to

reimburse one for injury to his reputa-

tion. The wrong, if it exists, can be

righted only by compensating the injured

party; not his friends, associates, or

defenders, As guilt in a criminal case

is personal, and there can be no guilt

by association, so, too, is defamation

personal. There can be no defamation by

association. Inasmuch as paragraph 23

makes no mention of plaintiffs and,

however liberal the reading, cannot, as

a matter of law, be read as defaming

plaintiffs, it has no place in the com-

plaint.

As to paragraph 13, which

alleges a conspiracy to defame plain-

tiffs, it is clear that the viability

of the first cause of action depends on

45a

the specific acts of the defendants. An

action for defamation may not be pleaded

as a conspiracy (Russo v. Advance Publi-

cations, Inc., 33 A D 2d 1025).

Paragraphs 2l(e) and 22(c)

allege that the film depicts McCarthy

and those associated with him, including

Cohn, (paragraph 2l[e]) and Schine (para-

graph 22[c]) as ruthless, irresponsible i

men, bent on the destruction of individual

freedoms and that this was damaging to

both plaintiffs. No factual basis worthy

of note, other than the book-burning in-

cident, is given to support the conclu-

sion. To the extent that plaintiffs

rely upon this incident, it is repeti-

tive and unnecessary. To the extent

that it seeks to introduce something new,

no factual basis is offered.

B, There is no warrant for

compelling each of the plaintiffs to

46a

separately state his cause of action,

Particularly is this true inasmuch as

the two individual plaintiffs, in res-

pect of their work, were and are

closely intertwined in the public mind,

Accordingly, that branch of

the motion seeking to dismiss the com-

plaint is granted only to the extent

of dismissing the second cause of action,

That branch of the motion seeking alter-

native relief is granted to the extent |

only of striking paragraphs 13, 2l(e),

22(c) and 23. In all other respects,

the motion is denied.

Dated: New York, New York

March 9, 1978

/s/ MB

HON. MAX BLOOM

47a

APPENDIX C

At a term of the Appellate

Division of the Supreme Court

held in and for the first

Judicial Department in the

County of New York, on April

5, 1979

Present--

Hon. Harold Birns, Justice Presiding,

Arnold L. Fein,

Leonard H. Sandler,

Vincent A. Lupiano, Justices.

Roy M. Cohn, G. David Schine and

Saxe, Bacon & Bolan, P.C.,

Plaintiffs-Respondents-Appellants,

-~against- 4773

National Broadcasting Co., Inc,,

Universal City Studios, Inc., and

George Eckstein,

Defendants-Appellants-Respondents.

Cross-appeals having been taken to this

Court by the defendants-appellants-

respondents from so much of the order

of the Supreme Court, New York County

48a

(Bloom, J.), entered on March 13, 1978,

as denied their motion to dismiss the

first cause of action of the amended

complaint or, in the alternative, to

require plaintiffs separately to state

and number their individual causes of

action and claims of damage, and by

plaintiffs-respondents-appellants from

so much of said order as granted defend-

ants' motion to dismiss the second cause

of action and which struck paragraphs

13, 2l(e), 21(c) and 23 of the amended

complaint, and said appeals having been

argued by Mr. Roy R. Kulcsar of counsel

for plaintiffs-respondents-appellants,

and by Mr. John C. Sabetta of counsel

for defendants-appellants-respondents;

and due deliberation having been had

thereon, and upon the Opinion of this

Court filed herein,

It is unanimously ordered that the

49a

order appealed from be and the same is

hereby modified, on the law, to grant

the motion to dismiss the first cause

of action, and otherwise affirmed,

without costs and without disbursements.

ENTER:

JOSEPH J. LUCCHI

Clerk.

50a

SUPREME COURT, APPELLATE DIVISION

First Department, February 1979

Harold Birns, J.P.

Arnold L. Fein

Leonard H. Sandler

Vincent A. Lupiano, JJ.

Roy M. Cohn, G. David Schine and

Saxe, Bacon & Bolan, P.C., :

Plaintiffs-Respondents-Appellants,:

-against- :4773

National Broadcasting Co., Inc.,

Universal City Studios, Inc.,

Defendants-Appellants-Respondents,

-and-

George Eckstein,

Defendant.

Appeal by the defendants-appellants-

respondents from so much of the

order of the Supreme Court, New

York County (Bloom, J.), entered

on March 13, 1978, which denied

their motion for an order dismiss-

5la

ing the first cause of action of

the amended complaint, or, in the

alternative, requiring plaintiffs

separately to state and number

their individual causes of action

and claims of damage, and a cross-

appeal by the plaintiffs-respond-

ents-appellants from so much of

said order as granted the defend-

ants-appellants-respondents' motion

to dismiss the second cause of

action of the amended complaint

for failure to state a cause of

action and struck paragraphs 13,

21(e), 22(c) and 23 of the amended

complaint.

John C, Sabetta of counsel (Susan

M. Campbell with him on the briefs;

Townley & Updike, attorneys) for

defendants-appellants-respondents.

Roy R. Kulcsar of counsel (John F.

Lang and Michael J. Cacace with him

on the briefs; Lang & Nesci, P.C.,

attorneys) for the plaintiffs-

respondents~appellants.

52a

4773 - Roy M. Cohn et al v. National

Broadcasting Co. Inc. et al.

FEIN, J.

Defendants appeal from so much

of an order as denied a motion by National

Broadcasting Co., Inc. and Universal City

Studios, Inc., to dismiss the first cause

of action alleged in plaintiffs' amended

complaint or, in the alternative, to

direct plaintiffs to separately state

and number. Plaintiffs cross-appeal to

the extent that Special Term granted the

motion dismissing the second cause of

action and striking paragraphs 13, 2l(e),

22(c) and 23 of the amended complaint.

The action, sounding in defama-

tion and invasion of privacy, seeks dam-

ages resulting from the production by

Universal of a film entitled "Tail Gunner

Joe" and the exhibition of that film by

NBC on February 6, 1977. Plaintiffs con-

53a

tend that the film, portraying the era

of the late Senator Joseph McCarthy,

held them up to public ridicule and in-

jured their reputation. Plaintiff Cohn,

a member of the law firm Saxe, Bacon &

Bolan, had served in the early 1950's as

chief counsel to the Investigations Sub-

committee of the Senate Government Oper-

ations Committee, chaired by Senator

McCarthy. Plaintiff Schine was chief

consultant to the subcommittee.

Special Term, in a scholarly

opinion, set forth the historical events

underlying the portrayals in the film

and reviewed the applicable law in deter-

mining whether the pleaded allegations

of the complaint stated actionable claims.

We agree with Special Term that the sec-

ond cause of action for invasion of pri-

vacy under §§ 50 and 51 of the Civil

Rights Law fails to state a cognizable

54a

claim for relief. Plaintiffs Cohn and

Schine claim that the use of their names

in advertising the film and in having

actors portray them against their wishes

constituted an invasion of privacy. As

found by Special Term, the subject of

the film remains a matter of public in-

terest. In the absence of allegation

and proof that the advertising was false

and published with knowledge of its fal-

sity or with reckless disregard of the

truth, or that the selection of actors

to portray Cohn and Schine was done in

such manner as to be defamatory, no

actionable cause is stated pursuant to

the Civil Rights Law under the circum-

stances of this case. (Spahn v. Julian

Messner, Inc., 21 NY 2d 124).

However, we disagree with Spe-

cial Term's conclusion that the refer-

ence in the first cause of action to the

55a

"book-burning scene" relating to

McCarthy's attempt to purge American

overseas information libraries of cer-

tain books by well-known American

authors is sufficient to sustain that

cause of action, on the face of the

pleading.

Although the quoted dialogue

refers to Cohn and Schine, we disagree

with Special Term's finding that it is

susceptible of a libelous meaning be-

cause a jury might find that an "ordi-

nary observer of the film would con-

clude that they [Cohn and Schine] were

among the book burners." The only ref-

erence to Cohn and Schine in this seg-

ment is that "they hit the road and

went to Europe and they discovered

[laughter] you're not going to believe

this, they discovered some of the

authors carried in our overseas librar<

56a

ies -- this is really awful -- well they

were also available in some Soviet Infor-

mation centers. I mean like Mark Twain.

Mark Twain. The Soviets had Mark Twain."

Plaintiffs do not deny that they made

the Eurcpean trip and discovered the

placement of the books.

Elsewhere in the segment there

is a reference to the burning of books

by “American Civil Servants", in one

case at the "American Embassy in Sydney,

Australia." There is no suggestion that

Cohn or Schine participated in or were

present at this or any other bock burn-

ing. Plaintiffs do not deny that some

book burnings occurred.

The narrative also quotes Sen-

ator McCarthy as having stated that “our

overseas libraries contained some 30,000

subversive volumes, paid for, of course,

by the American taxpayer." This remark

57a

is not attributed to plaintiffs who do

not deny it was made. There is no basis

here for a finding that the plaintiffs

were among the book burners or partici-

pated in a campaign to burn books.

Moreover there is no assertion by plain-

tiffs that any of the factual statements

in the segment are untrue. It cannot be

reasonably concluded that plaintiffs are

charged with participating in a campaign

to burn books.

To the extent that the film

suggests plaintiffs may have some politi-

cal responsibilities for the character

and consequences of the investigation of

the overseas libraries, and the climate

which occasioned book burnings, it is

not actionable in the absence of proof

of falsity in reporting the facts on

which the conclusion is based. "“Opin-

ions, false or not, libelous or not, are

58a

constitutionally protected and may not

be the subject of private damage actions

provided [as here] that the facts sup-

porting the opinions are set forth."

(Rinaldi v. Holt, Rinehart & Winston,

Inc., 42 NY 2d 369, 380, cert. den., 434

U.S. 969).

Plaintiffs also contend that

this segment is defamatory because it is

slanted and distorted in that (1) some

of the authors and books referred to

were not mentioned in the hearings or in

the reports on the investigation; and

(2) the film did not disclose the pur-

chase and use in the libraries of books

by known Communists or Commifnist sup-

porters or by persons who were identi-

fied as having been involved or impli-

cated in Soviet espionage. Apparently

the complaint is that there is lack of

a balanced presentation or the omission

59a

of balancing facts. However this is

essentially a matter of editorial judg-

ment and not actionable (Columbia

Broadcasting System v. Democratic Na-

tional Committee, 412 U.S. 94, 120,

121).

Our review of the complaint

compels the finding that, as to Cohn

and Schine, there is no actionable

libel as a result of the passages com-

plained of in the film. The fact that

both were involved with McCarthy and

with the subcommittee hearings does not

give rise to a derivative claim as a

result of the portrayal of McCarthy in

the film. Even assuming as true plain-

tiffs' assertion that the film unneces-

sarily distorted McCarthy's career and

was unmistakably disparaging to the late

Senator, this would not giye rise to a

claim for defamation by plaintiffs as

60a

his former aides and advisors.

Moreover, were the film found

to be defamatory, which it was not, both

Cohn and Schine clearly were public fig-

ures within the purview of New York

Times v. Sullivan, 376 U.S. 254. There-

fore, the publication was legally pro-

tected by a qualified privilege "unless

. - » [plaintiff] proves that the publi-

cation was made with actual malice, that

is, with knowledge that it was false or

with reckless disregard as to whether it

was false or not...[that is] with the

intent to inflict harm through false-

hood" (Silbowitz v. Lepper, 32 AD 2d

520, 521). Reckless conduct may be

shown by proof that the publisher "acted

in a grossly irresponsible manner with-

out due consideration for the standards

of information gathering and dissemina-

tion ordinarily followed by responsible

6la

parties." (Chapadeau v. Utica Observer,

38 NY 2d 196, 199). It may also be dem-

onstrated by "a showing of highly unrea-

sonable conduct constituting an extreme

departure from the standards of investi-

gation and reporting ordinarily adhered

to by responsible publishers" (Curtis

Pub, Co. v. Butts, 388 U.S. 130, 155);

or by a “high degree of awareness of

» « » probable falsity" (Garrison v,

Louisiana, 379 U.S, 64, 74), The sub-

ject matter of the film was also a

matter of public interest, requiring

proof of actual malice to sustain the

action (Rosenbloom v, Metromedia, 403

U.S. 29). The fact that both Cohn and

Schine have returned to private life

does not, in any way, mitigate their

burden of demonstrating actual malice

to sustain a cognizable claim for libel

(see, Gertz v. Robert Welch, Inc,, 418

62a

U.S. 323). So far as appears there is

no showing of falsity and no showing

that the film was composed and there-

after exhibited with actual malice,

The general conclusory assertion that

it was maliciously published is insuf-

ficient, Nor is the complaint at all

sufficient in setting forth special dam-

ages, as required, where the words are

not libelous per se. There is not even

the barest showing that Cohn or Schine

were actually damaged as a result of the

film, So «<ir as appears, Cohn, at least,

has openly used his prior association

with the late Senator McCarthy to his

personal gain.

) Finally, the amended complaint

fails to state a cause of action on be-

half of Cohn's law firm, Saxe, Bacon &

Bolan, It does not complain of or seek

recovery for any defamatory portrayal or

63a

utterance directed against it. The law

firm was never mentioned during the

course of the film. The fact that Cohn,

as a member of the firm, seeks recovery

for an alleged defamatory work, cannot

give rise to a derivative claim on be-

half of his employer or partners in the

firm, upon mere conclusory assertion

that the reputation of the firm is

inextricably tied to Cohn as its prin-

cipal producer of income. No such

derivative claim for defamation exists.

Moreover, even assuming that there was

defamation, which there was not, the

law firm as a professional corporation,

must establish that the libel directly

affected its credit and resulted in

pecuniary injury or loss. This requires

sufficient allegations of special dam-

ages which are clearly lacking here

(see, New York Bureau of Information v,

64a

The Ridgway~Thayer Company, 193 NY 666,

revg. on the dissenting opinion of Jus-

tice Ingraham in 119 App Div 339, 342;

Everett v. Gross, 22 AD 2d 257).

Accordingly, the order, Sup-

reme Court, New York County (Bloom, J.),

entered March 13, 1978, granting the

motion of defendants National Broadcast-

ing Co,, Inc. and Universal City Studios

pursuant to CPLR 3211(a) (7), dismissing

the second cause of action and striking

paragraphs 13, 21(e), 22(c) and 23 of

the amended complaint, but denying the

branch of the motion to dismiss the

first cause of action, should be modi-

fied, on the law, to grant the motion

to dismiss the first cause of action,

"Mand othervise affirmed, without costs

or disbursements on the appeal.

All concur,

65a

APPENDIX D

SUPREME COURT OF THE UNITED STATES

No. A-209

ROY M. COHN, G. DAVID SCHINE AND

SAXE, BACON & BOLAN, P.C.

Petitioners,

Vv.

NATIONAL BROADCASTING COMPANY, INC.

ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the appli-

cation of counsel for petitioners,

IT IS ORDERED that the time for

filing a petition for writ of certiorari

in the above-centitled cause be, and the

same is hereby, extended to and including

October 3, 1980.

66a

/s/ Thurgood Marshall

Associate Justice of |

the Supreme Court of

the United States

Dated this 5th

day of September, 1980

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.