Petition — Associated Press v. Bufalino

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8 2 _ ] 5 2 7 Office-Supreme Court, U.S.

FILED

No. 82-__ MAR 14 1983

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

> —-

THE ASSOCIATED PRESS,

Petitioner,

—against—

CHARLES J. BUFALINO, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

WILLIAM P. ROGERS

Counsel of Record

STANLEY GODOFSKY

RICHARD N. WINFIELD

LOUISE SOMMERS

ROGERS & WELLS

200 Park Avenue

New York, New York 10166

(212) 878-8000

Attorneys for Petitioner

The Associated Press

QUESTIONS PRESENTED

This libel case involves news dispatches which disclosed the

sources of campaign contributions in a 1978 gubernatorial

race. The reports revealed that the successful candidate for

governor of Pennsylvania had accepted political contributions

from individuals having alleged mob ties. One of those individ-

uals was respondent, a local public official. The dispatches

were based on information provided by state law enforcement

agency officials which was fully documented in the files of the

agency. The dispatches accurately reflected information con-

tained in the agency’s files, as well as federal law enforcement

agency files, United States Senate subcommittee reports, judi-

cial and quasi-judicial proceedings and other official records.

The precise questions presented are:

1. Whether the rule in New York Times Co. v. Sullivan, 376

U.S. 254 (1964), applies to news dispatches concerning cam-

paign contributions to a candidate for high public office in a

libel suit by a contributor whose identification is integral to the

reports.

2. Whether such news dispatches alleging that the contribu-

tor, a local public official, had underworld connections fall

outside the protection of New York Times Co. v. Sullivan,

supra, because the news reports do not identify the contribu-

tor’s public office.

3. Whether the First Amendment protects from liability for

defamation news accounts which accurately summarize official

reports.

4. Whether the court of appeals’ failure to defer to the

decision of another circuit court on the law of a state within

the latter’s circuit, and to follow controlling state law, effec-

tively discriminates against a federal defendant on issues of

state law, and contravenes prior decisions of this Court.

TABLE OF CONTENTS

PAGE

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CONSTITUTIONAL AND STATUTORY

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Seeeneeern Gn BREE CASE... ccc cccccccccccnes 3

REASONS FOR GRANTING THE WRIT........... y

I. The Decision of the Court of Appeals Raises

Important First Amendment Questions Regarding

Application of the Public Official Doctrine ..... 9

Il. The Ruling of the Court of Appeals Restricts

Constitutional Protection For Accurate Accounts

os cccbecncccccccccccceece 12

III. The Failure of the Court of Appeals to Defer to

the Decision of Another Circuit Court on a Ques-

tion of the Law of a State Within the Latter

Circuit And to Follow Controlling State Law

Discriminates Against a Federal Defendant on

State Issues and Conflicts With Decisions of This

DMP CCUCEESc cashes babedsaccceseeccesss 14

TABLE OF AUTHORITIES

Cases PAGE

Altemose Construction Co. v. Building & Construction

Trades Council, 443 F. Supp. 489 (E.D. Pa. 1977)... 15

Angel v. Bullington, 330 U.S. 183 (1947)............4. 16

Binder v. Triangle Publications, Inc., 442 Pa. 319, 275

Ti OR RETTRIL SC a SAGE RAST AOR CEE UR OT I 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) 13

Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278 (2d Cir.

1981), cert. denied, 102 S. Ct. 197% (1982).......... 15

Foster v. Laredo Newspapers, Inc., 541 S.W. 2d 809

(Tex. 1976), cert. denied, 429 U.S. 1123 (1977)...... 11

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...... 11

Goodrick v. Gannett Co., 500 F. Supp. 125 (D. Del.

PO KOndaes sede ceri tia beak ee aoe hina eer 1}

Green v. Alton Telegraph Printing Co., 107 Ill. App. 3d

poe GE Be) Ber rrr rere rr 13

Guaranty Trust Co. v. York, 326 U.S. 99 (1945)....... 16

Hepps v. Philadelphia Newspapers, Inc., 3 Pa. D. & C.

Be COTTE as caesar s eas hace Kee aoe ee 15

Landmark Communications, Inc. v. Virginia, 435 U.S.

Ge CO ass pce ashok ear ke eath ee eaeare se) 13

MacGregor v. State Mutual Life Assurance Co., 315

A ae Caan kh Sateen as cha ee bee amen 16

Medico v. Time, Inc., 643 F.2d 134 (3d Cir.), cert.

Sind, 454: B. SHORTS vc bccccceviviccecsves 8, 14, 15

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)...... 9

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)... i, 7,

8, 9, 10, 11, 12, 13

Ocala Star-Banner Co. v. Damron, 401) U.S. 295

SE carers at re Cee ae ei eer oe eR eis aks

Ocala Star-Banner Co. v. Damron, 221 So.2d 459 (Fla.

App. 1969), appeal dismissed, 231 So.2d 822 (Fla.

1970), reversed on other grounds, 401 U.S. 295 (1971)

Pesavento v. Wilkes-Barre Independent Co., 13 Pa. D.

Poe Fe os og OREM CERES Oe

Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)

Steaks Unlimited v. Deaner, 623 F.2d 264 (3d Cir. 1980)

Stone v. Essex County Newspapers, Inc., 367 Mass. 849,

RC EEO T SS Cake naeeabie bakes craks eso

In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963).........

United States v. Durham Lumber Co., 363 U.S. 522

Sd ee Gra al he kh ade bth bkiW so 4 Ww oe ew

United States v. Russell Bufalino, No. 80 Cr. 829

(S.D.N.Y. November 17, 1981), aff'd, 683 b.2d 639

(2d Cir. 1982), cert. denied, 51 U.S.L.W. 3508 (Janu-

eM a xccboeeeN ch vest e owed rere ences

Statutes & Constitution

42 Pa. Cons. Stat. Ann. § 5942(a) (Purdon 1952)......

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Sees Es ES POE OB Bae cn kvyskeanevaanseeu.es

PAGE

3,1

tO NOW

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-

THE ASSOCIATED PRESS,

Petitioner,

—against—

CHARLES J. BUFALINO, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner The Associated Press (“AP”) respectfully prays

that a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Second

Circuit, entered on October 27, 1982. A petition for rehearing

was denied on December 15, 1982.

OPINIONS BELOW

The opinion of the Court of Appeals for the Second Circuit

of which review is sought is reported at 692 F.2d 266 and

appears in the Appendix to this Petition (1-19a).' The decision

I Citations herein to material printed in the Appendix appear as

= a”. Citations herein to material contained in the Joint Appen-

dix filed below appear as “ JA.”

of the Court of Appeals for the Second Circuit denying the

petition for rehearing (unreported) also appears in the Appen-

dix to this Petition (21a).

The opinion of the District Court for the Southern District

of New York granting the motion of AP is not officially

reported but appears at 8 Media Law Reporter 1952 and also in

the Appendix to this Petition (23-37a).

JURISDICTION

The judgment of the Court ci Appeals for the Second

Circuit was entered on October 27, 1982 (1-19a). A timely

petition for rehearing with a suggestion for rehearing en banc

was filed on November 10, 1982 and was denied on December

15, 1982 (21a). This petition for certiorari is filed within ninety

(90) days thereof. The Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

AUTHORITY INVOLVED

The constitutional provision involved in this case is the First

Amendment, which provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

This provision is made applicable to the states by Section 1

of the Fourteenth Amendment, which provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

Also involved is Pa. Cons. Stat. Ann. § 5942(a) (Purdon

1982) which provides:

No person engaged on, connected with, or em-

ployed by any newspaper of general circulation or

any press association or any radio or television

station, or any magazine of general circulation, for

the purpose of gathering, procuring, compiling, edit-

ing or publishing news, shall be required to disclose

the source of any information procured or obtained

by such person, in any legal proceeding, trial or

investigation before any government unit.

STATEMENT OF THE CASE

Following statewide elections in Pennsylvania, petitioner AP

prepared news dispatches in December 1978 reporting the

names and other information identifying many of the contribu-

tors to the candidates for governor. The dispatches reported,

among other things, that five contributors to Governor-clect

Thornburgh’s successful campaign were alleged by the Penn-

sylvania Crime Commission to have ties to organized crime.

One of the five was respondent Charles J. Bufalino, Jr.

(“Bufalino”), a Pennsylvania attorney long employed as the

Borough Solicitor of the Borough of West Pittston, a small

Pennsylvania community. Bufalino brought this diversity ac-

tion in the Southern District of New York alleging that he was

defamed by the following statements:

Richard L. Thornburgh, who rose to fame by bat-

tling organized crime, accepted political contribu

tions from several individuals with alleged mob ties,

according to his campaign records. .

Among the 14,000 contributors listed by Thorn-

burgh were:

. . . -Charles Bufalino, Jr., an attorney who is

related to Russell Bufalino, described by the Crime

Commission as a Mafia boss. He gave $120.

* + *

Governor-elect Richard L. Thornburgh will return

campaign contributions to three individuals who al-

legedly have ties to organized crime figures. . . ‘we

are looking into whether Bufalino has documentable

links to organized crime but as of today we have

been unable to determine that... .’

Bufalino, an attorney, is related to Russell Bufa-

lino, identified by state and federal investigative

agencies as a Mafia boss now in prison.

(1-7, 110-11, 134JA).

The AP dispatches were prepared by reporter Paul Carpen-

ter, who, in addition to other research, made several telephone

inquiries to public officials, including law enforcement person-

nel in the Pennsylvania Crime Commission, about the five

contributors. He spoke with three Crime Commission officials

who reported to him on the known organized crime connec-

tions of each of the five contributors. Two of the officials told

Carpenter that respondent Bufalino was related to Russell

Bufalino, identified by the Crime Commission as a Mafia

leader. The third Crime Commission official told Carpenter

that Bufalino represented clients whom the Crime Commission

believed to be connected with organized crime (94-96, 663, 707,

726-41, 750-58, 1179-81, 1200-11, 1219-22JA).’

2 An earlier AP dispatch reported that respondent Bufalino had been

“identified as having ties to organized crime by the Pennsylvania

Crime Commission” (105, 1399JA).

3 These officials made these statements with the understanding that

their identities would not be divulged (96, 1222a).

The information as to Bufalino’s family and business ties

provided by the Pennsylvania Crime Commission officials was

contained in publicly-available government and other reports

then on file in the records of the Pennsylvania Crime Commis-

sion. The Commission’s records as to Bufalino’s ties included

the following:

(1) United States Senate committee reports and

charts which state that Russell Bufalino is the Mafia

boss of Northeastern Pennsylvania, that respondent

Bufalino is his cousin, and that Bufalino’s father

Charles Bufalino and his uncle William Bufalino are

also cousins of Russell Bufalino;

(2) United States Senate Committee reports which

state that Bufalino’s uncle William Bufalino and his

grandfather Santo Volpe, Sr. are “criminal associ-

ates” of Russell Bufalino;

(3) Pennsylvania Crime Commission’s published

1970 Report on Organized Crime which states that

Bufalino’s grandfather Santo Volpe, Sr. was the first

leader of the Mafia in Northeastern Pennsylvania,

and that Bufalino’s friend and client William Medico

was a “criminal associate” of Russell Bufalino;

(4) land filings and records of judicial proceedings

which show that Bufalino represented members of

the Medico family, including William, Philip and

Angelo Medico, in a variety of legal transactions;

and

(5) land filings which show that Bufalino was the

grantee in a land transaction in which Santo Volpe,

Sr. was grantor.

(913-14, 1103-06, 211-16, 220-22, 234-41, 249, 300-02JA).

There is no dispute that the statements given by the Crime

Commission officials to Carpenter accurately reported the

information on Bufalino contained in the Commission’s own

files. It is equally undisputed that the AP news dispatches

accurately reported both the officials’ statements and the

information contained in the official files. Despite these facts,

the court of appeals reversed the district court’s grant of

summary judgment to AP.

The summary judgment motion was based upon the claim

that the dispatches were protected by both constitutional and

state law privileges.* In support of its motion, AP submitted—

in addition to the reports in the Crime Commission’s files—vo-

luminous official records, consisting of numerous government

reports, court filings and proceedings, and published accounts,

all of which were publicly available, and completely corrobo-

rated the statements in the news dispatches. These additional

official records included:

1) an FBI document stating that Russell Bufa-

lino’s local relatives include “a cousin Charles Buffa-

lino, Jr. [sic], a local Attorney” (941JA);

2) the testimony of Russell Bufalino in a deporta-

tion proceeding that respondent Bufalino’s father

was a cousin and that his uncle William “is a cousin

and ‘compare’ of mine” (208-09JA);

3) a corresponding affidavit of Bufalino’s uncle

William stating that William was “related to” Rus-

sell Bufalino (202-03JA);

4) a later published report of the Pennsylvania

Crime Commission stating that respondent Bufa-

linn.o’s grandfather Santo Volpe, Sr., his uncle Joseph

Saraceno, and six of his friends and clients, includ-

ing one Philip Medico, are “members” or “associ-

ates” of Russell Bufalino’s “crime family” (298-03,

971-80, 1O0I1JA);

5) FBI documents which state that Philip Medico

is a “capodecina” of Russell Bufalino and that three

It is not disputed that Pennsylvania law controls the state law

aspects of this litigation.

of respondent’s friends and clients, as well as his

uncle Joseph Saraceno, are Philip Medico’s

“criminal associates” and/or “members” of the Rus-

sell Bufalino crime family (513-SOJA); and

6) records of judicial proceedings, deeds and

mortgages showing respondent Bufalino’s represen-

tation of and dealings with Russell Bufalino, Santo

Volpe, Sr., and a number of other organized crime

figures (234-48, 257-97, 953-59, 1019-30, 1034-80,

1091-98JA).

Although Bufalino denied that there is an “identifiable”

relationship to Russell Bufalino (1495-96JA), he did not deny

that the official record showed that the relationship in fact

exists. Moreover, on deposition Bufalino freely admitted that

he knows, respects and is friendly to Russell Bufalino (1459-

60JA), concededly a twice-convicted felon identified by the

Government as a major leader of organized crime. See, @.g.,

United States v. Russeli Bufalino, No. 80 Cr. 829 (S.D.N-Y.

November 17, 1981), aff'd, 683 F.2d 639 (2d Cir. 1982), cert.

denied, 51 U.S.L.W. 3508 (January 10, 1983). Bufalino con-

ceded, in addition, that as the official record also shows, he

has close family, social and/or professional ties to the various

organized crime figures mentioned.*

In a Memorandum Decision dated January 25, 1981, the

district court granted summary judgment in favor of AP, ruling

as a matter of law that the AP dispatches were privileged under

both constitutional and state law. The district court found that

the AP news reports were protected by the First Amendment

privilege recognized in New York Times Co. v. Sullivan, 376

5 Bufalino testified to his close and continuous social and business/

professional dealings with Philip Medico and five other figures in

addition to his two uncles and his grandfather named above (1407-21,

1432-34, 1437, IS20JA). It is not disputed that every one of these men

have been designated by law enforcement authorities as organized

crime figures.

U.S. 254 (1964), because Bufalino was a public official, and

that Bufalino had failed to demonstrate, by clear and convinc-

ing evidence, that AP published with actual malice, the requi-

site constitutional standard of liability (34-36a). Alternatively,

it found that the statements were covered by the official

reports privilege recognized by Pennsylvania law and recently

construed by the United States Court of Appeals for the Third

Circuit in Medico v. Time, Inc., 643 F.2d 134 (3d Cir.), cert.

denied, 454 U.S. 836 (1981) (27-34a).

On October 27, 1982, the Court of Appeals for the Second

Circuit reversed the district court’s grant of summary judg-

ment for AP. In a novel sua sponte ruling, on an issue that was

neither briefed nor argued by the litigants, the court of appeals

denied to AP the First Amendment protection extended in Vew

York Times Co. v. Sullivan, supra, because the news dispatches

omitted mention of Bufalino’s official title as Borough Solici-

tor and because AP did not demonstrate Bufalino’s renown as

an official within the community (15-18a). The court of ap-

peals did not question or reverse the district court finding that

there was absolutely no evidence of actual malice.

The court of appeals also rejected the holding of the Su-

preme Court of Pennsylvania as construed by the Court of

Appeals for the Third Circuit in Medico v. Time, Inc., supra,

and, in contravention of its own policy requiring deference to

decisions of other circuit courts on matters of pertinent state

law, denied to AP the protection of the Pennsylvania official

reports privilege. The court ruled that, notwithstanding the

contrary view of the Third Circuit which was based squarely on

Pennsylvania precedent, the privilege in Pennsylvania did not

extend to any official reports which the reporter himself had

not examined when he wrote the dispatch, and could not be

based on the oral reports of the Pennsylvania Crime Commis-

sion officials to whom the reporter spoke in the absence of

disclosure of their identities (10-14a).

The present petition for a writ of certiorari follows the

denial by the court of appeals of AP’s petition for rehearing

(21a).

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE COURT OF APPEALS RAISES

IMPORTANT FIRST AMENDMENT QUESTIONS

REGARDING APPLICATION OF THE

PUBLIC OFFICIAL DOCTRINE

This case raises two important, far-reaching questions in the

application of New York Times Co. v. Sullivan, 376 U.S, 254

(1964). The first is whether the standard articulated in that case

extends to news reports about contributors to a candidate's

campaign for public office, where the suit is brought by a

contributor whose identification is integral to the reports. The

second question is whether that standard applies to news

reports concerning a local public official which omit the

official’s tithe but which nevertheless concern an issue bearing

directly on his fitness for office.

The genius of New York Times Co. v. Sullivan, supra, was

its elimination of strict and artificial rules in media defamation

cases concerning public officials while assuring the protection

of the reputations of public officials from deliberate false-

hoods. It thereby broadly encouraged press criticism, inquiry

and debate on official conduct and conduct of candidates for

public office. Subsequent decisions of the Court made clear

that New York Times Co. applied even to statements unrelated

to official office so long as they bear on the official's fitness

for office. Monitor Patriot Co. v. Roy, 401 U.S, 265 (1971);

Ocala Stor-Banner Co. v. Damron, 401 U.S, 295 (1971),

The segments of the news reports here in issue focused on

contributions, by persons with alleged organized crime ties, to

a successful campaign for governor of one of the largest states

in the nation. These are precisely the kinds of reports which

New York Times Co, and its progeny were de®’ ned to protect.

See, e.g., Monitor Patriot Ca. v. Roy, supra, 401 U.S, at 272.

Had the governor-elect sued on these reports there is little

doubt that the standard enunciated in New York Times Co. v.

Sullivan would have been applied. Here, however, a suit on

these reports was not brought by the candidate, but by one of

the contributors whose alleged ties to both organized crime and

the governor-elect precipitated the story. The value to the

public of these news reports would be plainly diminished if

only the candidate, but not his contributors, were identified. If

the public is to be adequately informed, it is entitled to know

all the facts relevant to an evaluation of the candidate's

fund-raising efforts, not just a portion of those facts.

Unless the New York Times Co. v. Sullivan standard is

applicable not only to suit by a governor-elect, but also to a

suit by an individual whose conduct is integral to reporting on

the official, the ability of the press to report on official

conduct and candidate fitness for office may be gravely im-

paired, and the robust debate on public issues, which New

York Times Co. v. Sullivan was intended to foster, inhibited.

Surely, this Court should not countenance this result, which

would cripple the press in the performance of its most funda-

mental duty.

The inhibiting implications of such a result are heightened,

where, as here, the complaining contributor, Bufalino, is him-

self a public official holding the local office of Borough

Solicitor in a small Pennsylvania community. The court of

appeals refused to acknowledge Bufalino’s status and hold him

to the New York Times Co, standard. Instead, it articulated a

novel restriction on the standard’s application, It ruled that

New York Times Co. did not extend to the reports in issue

because the news dispatches omitted Bufalino’s official title

and because AP did not demonstrate Bufalino’s renown as an

official within the small borough which he had long served.

In particular, the court of appeals held that unless respon-

dent’s status as a public official is directly or impliedly identi-

fied in the story itself or “is otherwise immediately recognized

in the community as that of a public official,” New York Times

Co. vy. Sullivan is inapplicable (16a). This holding reflects an

overly simplistic view of the process by which the public

acquires information about its public servants.

A name, although not immediately identified as that of a

public official, may become so identified by virtue of subse-

quent developments or the dissemination of additional intor-

mation. This is so particularly in small communities where

local officials have intimate and regular contact with their

constituents. Such identification could take place the same day

as the original report or days, weeks or even months later.

There is no reason to require inclusion of the office so that the

identification occurs in the same dispatch containing the state-

ments complained of, or to require that such identification be

“immediate.”

Moreover, many smaller communities are served by local

newspapers, radio and cable television, Such local media regu-

larly feature the activities of local officials and could, indeed,

provide the very basis for association between the name and

the public office which the court of appeals found to be fatally

absent.

In this connection, part of the rationale for the New York

Times Co, rule was that public officials “enjoy significantly

greater access to the channels of effective communication and

hence have a more realistic opportunity” to rebut the informa:

tion which the public receives. Gertz v. Robert Welch, Inc,, 418

U.S. 323, 344 (1974). This is nowhere more apparent than in

small communities where local officials enjoy easy access to

the local media and regularly use it as a forum for their views.

This Court has not squarely addressed the issue reached by

the court of appeals, see Ocala Star-Banner Co, v. Damron,

supra, 401 U.S. at 300 n.4, and the lower court decisions are in

conflict. Compare Foster v. Laredo Newspapers, Inc,, 541|

S.W.2d 809, 815-16 (Tex. 1976), cert. denied, 429 U.S. 1123

(1977) and Ocala Star-Banner Co, v. Damron, 22\ So, 2d 459

(Fla. App. 1969), reversed on other grounds, 401 U.S, 295

(1971) with Goodrick v. Gannett Co., 500 F. Supp. 125 (D.

Del. 1980) and Stone v. Essex County Newspapers, Inc., 367

Mass. 849, 330 N.E.2d 161 (1975). It is an issue which the

Court should now resolve.

* * *

The two questions relating to the application of New York

Times Co. v. Sullivan raised by this case are important not

only to petitioner here, who will be forced to undergo a

lengthy, burdensome and expensive trial on the merits should

this Court decline review. They are significant as well to the

continued ability of the press to rely, with any degree of

confidence and freedom from self-censorship, on the protec-

tion heretofore afforded vigorous reporting on public officials

and candidates for public office. These issues warrant review.

THE RULING OF THE COURT OF APPEALS RESTRICTS

CONSTITUTIONAL PROTECTION FOR ACCURATE

ACCOUNTS OF OFFICIAL REPORTS

The court of appeals held that the official record offered by

AP was an insufficient basis for the state-recognized official

reports privilege, because the reports cither were not before the

AP reporter at the time he prepared the dispatch, or the

information therefrom was transmitted by confidential

sources. It ignored and thereby rejected AP's contention that

the First Amendment precludes liability for defamation on

AP’s part for reporting accurately what is independently docu-

mented in official reports.

This ruling eviscerates the protection accorded by the First

Amendment for accurately reporting the contents of official

records, and raises an increasingly significant question for the

press concerning the contours of this protection in the context

of defamation claims.

This Court has underscored the value of this kind of report-

ing:

Public records by their very nature are of interest to

those concerned with the administration of govern-

ment, and a public benefit is performed by the

reporting of the true contents of the records by the

media. The freedom of the press to publish that

information appears to us to be of critical impor-

tance to our type of government in which the citi-

zenry is the final judge of the proper conduct of

public business.

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975).

Accordingly, this Court has extended First Amendment protec-

tion to the accurate reporting of the contents of official

records, forbidding recovery against the press for civil damages

in a privacy suit where the report in issue reflected judicial

proceedings. Cox Broadcasting Corp. v. Cohn, supra. \t has

also held that the First Amendment forbids the imposition of

criminal sanctions on the press for publishing the contents of

official reports which have not been made public, as well as

reports which have been obtained from unofficial sources.

Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979);

Landmark Communications, Inc. v. Virginia, 435 U.S. 829

(1978).

The underlying concerns on which these holdings are based

apply with equal force to defamation claims. This Court has

earlier observed that “[t]he fear of damage awards . . . may

be markedly more inhibiting than the fear of prosecution

under a criminal statute.” New York Times Co. v. Sullivan,

supra, 376 U.S, at 277. See Green vy. Alton Telegraph Printing

Co., 107 Ill. App. 3d 755, 438 N.E.2d 203 (1982). The

inhibiting effect on the reporting of official reports and pro-

ceedings, occasioned by protracted litigation, the imposition of

liability and possibility of devastating damage awards, poses

serious dangers to a free press and concomitant access by the

public to information essential to the proper exercise of its

rights in a free society.

Here, the AP reports accurately summarize information

about Bufalino’s family ties to Russell Bufalino and his busi-

ness and professional ties to organized crime which was con-

iained in the Pennsylvania Crime Commission's files and

which was accurately conveyed to AP by Crime Commission

officials. They accurately summarize, moreover, the contents

of a host of official reports or files, all publicly available, of

numerous federal bodies, including the Federal Bureau of

Investigation, the Immigration and Naturalization Service, and

the United States Senate, as well as various state and federal

courts and county offices.”

To allow a finding of liability against a responsible news

organization under these circumstances is simply to punish the

press for accurately reporting official information compiled

and disseminated by those charged with government adminis-

tration and law enforcement, and to deprive the public of

access to information that shapes its decisions about matters of

legitimate public concern. A ruling of this import unques-

tionably merits review.

THE FAILURE OF THE COURT OF APPEALS TO DEFER

TO THE DECISION OF ANOTHER CIRCUIT COURT ON

A QUESTION OF THE LAW OF A STATE WITHIN THE

LATTER CIRCUIT AND TO FOLLOW CONTROLLING

STATE LAW DISCRIMINATES AGAINST A FEDERAL

DEFENDANT ON STATE ISSUES AND CONFLICTS

WITH DECISIONS OF THIS COURT

In refusing to extend to the AP statements in issue the

protection accorded by Pennsylvania law to fair and accurate

summaries of official reporis, the court of appeals expressly

rejected the direct holding of the Court of Appeals for the

Third Circuit in Medico v. Time, Inc. , 643 F.2d 134, 146-47 (3d

Cir.), cert. denied, 454 U.S. 836 (1981)(39-65a). In Medico, a

diversity defamation case, the Third Circuit held that Pennsyl-

6 Morcover, Bufalino concedes the existence of this official record,

and his failure to complain about its accuracy at any previous time

(1562-66) A). He also concedes a web of social, family and business ties

to reported Mafia figures wholly outside the scope of the official

record.

vania law would protect a news story reporting the contents of

unattributed nonpublic FBI documents, and rejected the con-

tention that the Pennsylvania privilege would require the re-

porter to have actually relied on the official document in

preparing the story.

Both the policy of the Second Circuit and controlling Penn-

sylvania authority required the court of appeals to follow the

Medico decision.’ In Binder v. Triangle Publications, Inc., 442

Pa. 319, 275 A.2d 53 (1971), the Pennsylvania Supreme Court

previously had extended the Pennsylvania official reports privi-

lege to a report of a judicial proceeding prepared by a reporter

who, relying on an intermediary for his information, did not

have actual knowledge of the proceedings when he prepared

the article. The Pennsylvania Supreme Court flatly ruled that

“. . . how a reporter gathers his information concerning a

judicial proceeding is immaterial provided his story is a fair

and substantially accurate portrayal of the events in question.”

275 A.2d at 58 (74a).*

7 Only recently the Second Circuit ruled that as a matter of stare

decisis, it was required to defer to a decision by another court of

appeals with respect to the law of a state within the latter's circuit,

absent a “clear basis” in state law indicating that the other circuit's

conclusion was incorrect. Factors Ete., Inc. v. Pro Arts, Inc., 682 F.2d

278, 283 (2d Cir. 1981), cert. denied, 102 S. Ct. 1973 (1982). As

discussed above, no such “clear basis” for rejecting the Medico ruling

could be found in Pennsylvania law.

8 Pennsylvania would protect the statements on a separate ground,

The court of appeals refused to extend the privilege to the reports of

the Pennsylvania Crime Commission sources absent disclosure of the

identities of those sources (12-14a). However, under the Pennsylvania

Shield Law, 42 Cons. Stat. Ann. § 5942(a)(Purdon 1982), the courts of

Pennsylvania have consistently upheld the grant of an absolute eviden-

tiary privilege from source disclosure without sanction of any type.

See, e.g., In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963); Pesavento v.

Wilkes-Barre Independent, Co., 13 Pa. D.& C, 3d 216 (1979); Hepps

v. Philadelphia Newspapers, Inc., 3 Pa. D.& C. 3d 693 (1977); Steaks

Unlimited v. Deaner, 623 F.2d 264 (3d Cir. 1980); Altemose Construc-

tion Co. v. Building & Construction Trades Council, 443 F. Supp. 489

(E.D. Pa. 1977).

The court of appeals’ rejection of the Third Circuit’s ruling

conflicts with decisions of this Court which recognize the need

for uniformity in federal decisions resolving dispositive issues

of state law. Thus, this Court has recognized as fundamental

that “[flor purposes of diversity jurisdiction, a federal court is,

‘in effect, only another court of the State.’” Angel v. Bul-

lington, 330 U.S. 183, 187 (1947), citing Guaranty Trust Co, v.

York, 326 U.S. 99, 108 (1945). This Court additionally has

approved deferring to federal circuit court judges who are

experienced in the law of a state within their circuit, where that

state’s law is at issue. See, e.g., United States v. Durham

Lumber Co., 363 U.S. 522 (1960); MacGregor v. State Mutual

Life Assurance Co., 315 U.S. 280 (1942).

Failure of the federal courts to follow this policy introduces

substantial confusion and uncertainty into federal litigation

concerning state claims. Particularly where a plaintiff's choice

of a federal forum has deprived a defendant of an opportunity

to present a State issue to a state court, this departure discrimi-

nates against that federal defendant by depriving it of a

defense on a state law matter which would have been available

in state court. A court, state or federal, sitting in Pennsylvania

on this case would have applied the law of Pennsylvania as

found by the Pennsylvania Supreme Court or the Third Cir-

cuit. It would not have agreed with the Second Circuit.

The court of appeals’ rejection of established precedent and

policy fatally deprived AP of a dispositive state law defense.

This Court’s clear command that “a federal court adjudicating

a State-created right solely because of diversity of citizenship

of the parties. . . [not] substantially affect the enforcement of

the right as given by the State,” Guaranty Trust Co. v. York,

supra, 326 U.S. at 108-09, should not be so lightly disregarded.

CONCLUSION

For all the foregoing reasons, we urge that a writ of

certiorari be issued.

Dated: March 14, 1983

Respectfully submitted,

WILLIAM P. ROGERS

(Counsel of Record)

STANLEY GODOFSKY

RICHARD N., WINFIELD

LOUISE SOMMERS

ROGERS & WELLS

200 Park Avenue

New York, New York 10166

(212) 878-8000

Attorneys for Petitioner

The Associated Press

APPENDIX

TABLE OF CONTENTS

Opinion of the United States Court of Appeals for the

Second Circuit in Bufalino v. The Associated Press,

Order of the United States Court of Appeals for the

Second Circuit Denying Petition for Rehearing of

Appellee The Associated Press in Bufalino v. The

Associated Press, dated December 15, 1982.........

Opinion of the United States District Court for the

Southern District ef New York in Bufalino v. The

Associated Press, dated January 25, 1982 ..........

Opinion of the United States Court of Appeals for the

Third Circuit in Medico v. Time, Inc., 643 F.2d 134

a eg OR ee ei

Opinion of the Pennsylvania Supreme Court in Binder v.

Triangle Publications, Inc., 442 Pa. 319 (1971)......

PAGE

2la

23a

Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 55—August Term, 1982

(Argued September 1, 1982 Decided October 27, 1982)

Docket No. 82-7256

CHARLES J. BUFALINO, JR.,

Plaintiff-Appellant,

—against—

THE ASSOCIATED PRESS,

Defendant-A ppellee.

THOMAS A. ROTHWELL, EsQ., Washington

D.C. (Randolph J. Seifert, Esq., New

York, N.Y., of counsel), for Plaintiff-Ap-

pellant.

RICHARD N, WINFIELD, Esa., New York, N.Y.

(Rogers & Wells, N.Y., N.Y., Louise Som-

mers, Esq., of counsel), for Defendant-

Appellee.

Before:

LUMBARD, CARDAMONE and WINTER,

Circuit Judges.

LUMBARD, Circuit Judge:

Charles J. Bufalino, Jr. appeals from a grant of sum-

mary judgment to the Associated Press (AP) in his

diversity action for defamation against AP. Judge Werker

of the Southern District of New York granted AP sum-

mary judgment on both of two independent grounds.

First, he held that AP’s published statements about Bufa-

lino were not actionable under the “fair report privilege”

recognized by Pennsylvania law. Second, after finding

that Bufalino was a public official and that AP had not

acted with malice, he held Bufalino’s action barred under

the constitutional “malice” standard of New York Times

Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d

686 (1964). We reverse the grant of summary judgment on

both grounds and remand for further proceedings.

Appellant is a member of the Pennsylvania bar who

resides and practices law in West Pittston, Pennsylvania,

a community of some 7,000 to 8,000 persons in the

Scranton-Wilkes-Barre area of northeastern Pennsylva-

nia. In addition to his private practice, appellant is

employed by the Borough of West Pittston in the part-

time, appointive position of Borough Solicitor. As Bor-

ough Solicitor appellant attends meetings of the Borough

Council (the legislative body for West Pittston) and, upon

request, advises the Council on legal matters. He is

compensated from the Borough budget at approximately

$3,500 per year. Appellant claims that two reports pre-

pared by AP (a New York corporation) and published in

certain Pennsylvania newspapers in December 1978, de-

famed him with consequent damage to his personal and

professional lives. These reports identified appellant as a

person “with alleged mob ties.”

Appellant commenced this action with the filing of a

complaint on November 30, 1979. AP served its answer

on December 24, 1979. Following discovery by both

parties, AP moved for summary judgment on June 10,

1980. Judge Werker granted AP’s motion in an opinion

filed on January 28, 1982.

Judge Werker assumed certain facts to be true in

rendering summary judgment for the defendant. While

plaintiff disputes some of these facts, we also will assume

them to be true for purposes of this appeal so that the

correct legal standard may be established prior to trial. At

trial plaintiff will be free to put his version of the facts to

the trier. We therefore state the facts as follows.

On December 7, 1978 Pennsylvania Governor-elect

Richard L. Thornburgh released a list of contributors to

his election campaign. Paul Carpenter, then a newsman in

the Harrisburg office of AP, reviewed the list that day.

Carpenter recognized the name “Bufalino” as a result of

previous reporting work in the areas of law enforcement

and organized crime. He researched the backgrounds of

the individuals whose names he recognized to confirm

information about them and to obtain additional infor-

mation for a news report. He consulted materials released

by the Pennsylvania Crime Commission (a public investi-

gatory body without enforcement powers), including its

1970 Report on Organized Crime, He consulted AP files

and his own working files. He reviewed newspaper arti-

cles which reported that William E. Bufalino, Sr, a

Detroit lawyer, was a cousin and criminal associate of

Russell Bufalino, a reputed Mafia leader.’ He next con-

tacted two other reporters believed by him to be reliable

and knowledgeable in the area of organized crime. One

reporter told him that appellant and Russell Bufalino

were related, and the other told him that he was “pretty

sure” they were related.

Carpenter also telephoned personnel at the Pennsylva-

nia Crime Commission to verify his information. Two

Commission employees, described by Carpenter as “offi-

cials,” informed Carpenter that appellant was related to

Russell Bufalino. The Commission had previously identi-

fied Russell Bufalino as a Mafia leader. A third Commis-

sion employee (or “official”) told Carpenter that in his

private practice appellant represented individuals sus-

pected of having connections with organized crime. Car-

penter agreed with the “officials” not to reveal their

identity, and he has not done so. At a pre-trial deposition

| Russell Bufalino and this court have not been strangers to each

other. See United States v. Bufalino, 683 F.2d 639 (2d Cir, 1982);

United States v. Bufalino, 576 F.2d 446 (2d Cir.), cert. denied, 439 U.S.

928, 99 S.Ct. 314, 58 L.Bd.2d 321 (1978); and United States v

Bufalino, 285 F.2d 408 (2d Cir. 1960).

Carpenter stated that the word “officials,” as he used it,

could refer not only to members of the Commission, but

also to various officers and agents of the Commission.

After obtaining this information, Carpenter prepared a

story on the campaign fund disclosures for transmission

to morning newspapers in Pennsylvania. Robert Dvor-

chak, in charge of AP’s Harrisburg bureau, reviewed the

story and asked Carpenter about the sources of his

information for each individual named in the story. The

story was then transmitted to AP’s Philadelphia Bureau

on the evening of December 7, 1978.

As reported in the Scranton Times on December 8,

1978, and in the Wilkes-Barre Times-Leader Evening

News on December 9, 1978, the story stated:

Harrisburg (AP)—Governor-elect Richard L. Thorn-

burgh, who rose to fame by battling organized crime,

accepted political contributions from several individ-

uals with alleged mob ties, according to his campaign

records...

Among the 14,000 contributors listed by Thorn-

burgh were:

... . Charles Bufalino Jr., an attorney who is

related to Russell Bufalino, described by the Crime

Commission as a Mafia boss. He gave $120.

On December 8, 1978, Dvorchak prepared a follow-up

story incorporating the response of Governor-elect Thorn-

burgh’s press secretary to the original article. This follow-

up story was transmitted by AP’s Harrisburg bureau to

other AP members on December 8th and 9th. As reported

in the Scranton Times on December 9, 1978, and in the

Wilkes-Barre Times-Leader Evening News on December

13, 1978, this story stated:

Harrisburg (AP)—Governor-elect Richard L. Thorn-

burgh will return campaign contributions to three

individuals who allegedly have ties to organized

crime figures... .

“We are looking into whether Bufalino has docu-

mentable links to organized crime, but as of today

we have been unable to determine that,” ... .

Bufalino, an attorney, is related to Russell Bufa-

lino, identified by state and federal investigative

agencies as a Mafia boss now in prison.

But [Thornburgh’s press secretary] said Bufalino’s

mere family ties . . . do not warrant returning. . .

Bufalino’s $120 contribution.

Appellant bases his action for defamation upon the two

stories quoted above. To establish liability for defamation

under Pennsylvania law, the plaintiff must prove both the

defamatory character of the defendant’s communication

and the recipient’s understanding of its defamatory mean-

ing. 42 Pa. Cons. Stat. Ann. § 8343(a) (Supp. 1981). The

Pennsylvania Supreme Court has stated that the court is

to determine, in the first instance, whether the communi-

cation complained of is capable of a defamatory mean-

ing. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442,

273 A.2d 899, 904 (1971). If the court concludes that the

communication may have a defamatory meaning, the jury

is to determine whether it was so understood by the

recipient. Our initial inquiry, therefore, is whether AP’s

statements about appellant are susceptible of a defama-

tory meaning. Ihe Pennsylvania Supreme Court has

adopted the definition of defamation set forth in § 559 of

the original Restatement of Torts. Birl v. Philadelphia

Electric Co., 402 Pa. 297, 167 A.2d 472 (1969).° We

therefore must evaluate AP’s statements in light of § 559,

which defines a defamatory communication as one that

“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.” We have

no doubt that under this test AP’s statements about

appellant are susceptible of a defamatory meaning. A

description of an individual as a person “with alleged

mob ties” may well lower the community’s estimation of

that person and deter others “from associating or dealing

with him.” It is true that AP’s statement of a family

relationship between appellant and Russell Bufalino may

not in itself be defamatory. A mere imputation of family

relationship generally is not actionable. However, Gov-

ernor-elect Thornburgh’s prompt decision to return the

campaign contributions of certain persons named in the

articles is strong evidence of the meaning most readers

would attribute to the phrase “alleged mob ties.” We

conclude that taken together AP’s stories could have a

defamatory meaning, and that appellant therefore satis-

fied his initial burden of proof.

Defamatory communications are not actionable, how-

ever, if protected by privilege. Among the privileges

recognized by Pennsylvania is a privilege for the “fair and

accurate” reporting of official records and proceedings.

The scope of this privilege in Pennsylvania is open to

debate. Although in several decisions the Pennsylvania

2 Section 559 of the Restatement (Second) of Torts makes no amend-

ments to § 559 of the original Restatement.

Supreme Court adopted as the law of the state the fair

report privilege set forth in § 611 of the original Restate-

ment of Torts, see Binder v. Triangle Publications, Inc.,

442 Pa. 319, 324, 275 A.2d 53, 56 (1971); Purcell v.

Westinghouse Broadcasting Co., 411 Pa. 167, 177, 191

A.2d 662, 667 (1963); Sciandra v. Lynett, 409 Pa. 595,

600, 187 A.2d 586, 589 (1963), no Pennsylvania court has

yet considered the significance of the amendments made

to § 611 in the Restatement (Second) of Torts. We agree,

however, with Judge Werker that the fair report privilege

contained in § 611 of the Second Restatement embodies

present Pennsylvania law. We note first the expressed

willingness of the Pennsylvania Supreme Court to adopt

sections of the Second Restatement where the Restate-

ment differs from or supplements Pennsylvania common

law. Gilbert v. Korvette, Inc., 457 Pa. 602, 611 n.25, 327

A.2d 94, 100 n.25 (1974). Second, we note that significant

federal authority treats § 611 of the Second Restatement

as the law of Pennsylvania. See Medico v. Time, Inc., 643

F.2d 134, 138 (3d Cir.), cert. denied, 454 U.S. 836, 102

S.Ct. 139, 70 L.Ed.2d 116 (1981); Hanish v. West-

inghouse Broadcasting Co., 487 F. Supp. 397 (E.D. Pa.

1980); Mathis v. Philadelphia Newspapers, Inc., 455 F.

Supp. 406, 415 (E.D. Pa. 1978). We therefore believe that

Pennsylvania law is accurately stated in § 611 of the

Second Restatement, which provides:

The publication of defamatory matter concerning

another in a report of an official action or proceed-

ing or of a meeting open to the public that deals with

a matter of public concern is privileged if the report

is accurate and complete or a fair abridgement of the

occurrence reported.

AP claims that its stories are protected by this privilege.

Judge Werker agreed, and granted AP summary judg-

ment under § 611. The judge granted summary judgment

because he concluded that AP’s statements about appel-

lant constituted “fair and accurate” reports of informa-

tion contained in official records. We reverse the grant of

summary judgment because the record does not show that

AP actually relied upon the official records which it now

claims it accurately summarized in its stories.

In relevant part, Judge Werker read appellant’s com-

plaint to complain of two statements in the stories: 1) that

appellant is related to Russell Bufalino; and 2) that

appellant allegedly has ties to organized crime.’ In Judge

Werker’s view both of these statements are privileged

because each is supported by official records.

AP’s first statement, said Judge Werker, was ade-

quately supported by (a) an FBI memorandum of July 20,

1956 that identified appellant as a cousin of Russell

Bufalino; (b) the statement by Crime Commission “offi-

cials” to Carpenter that appellant is related to Russell

Bufalino; and (c) by several other documents, including a

U.S. Senate Report and testimony in deportation pro-

ceedings which establish a family relationship between

appellant’s father (Charles J. Bufalino, Sr.) and uncle

(William Bufalino) and Russell Bufalino, and hence in-

ferentially between appellant and Russell Bufalino. AP

makes no claim that it relied on any of these sources other

than source (b) at the time it circulated its stories in

December, 1978.

3 Judge Werker also read appellant's complaint to complain of the

statement that Russell Bufalino has been identified by state and federal

officials as a Mafia boss. We need not decide the application of the fair

report privilege to this statement because it is obvious that a statement

identifying Russell Bufalino as a mobster does not defame appellant.

10a

Judge Werker found that AP’s second statement was

adequately supported by the documents establishing a

family relationship between Russell Bufalino and appel-

lant, and by the statement of the Crime Commission

“official” to Carpenter that appellant represented under-

world figures in his law practice. Judge Werker ruled that

the statement that appellant had “alleged mob ties” was a

fair and accurate summary of all of this official informa-

tion. AP additionally cites to this Court a number of

other official records which, it argues, further establish

financial, family, and social ties between appellant and

persons identified by state and federal officials as partici-

pants in organized crime. Not relied upon by Judge

Werker, these “records” include depositions in the present

trial, land filings, and records of other judicial proceed-

ings. They suggest that appellant knows and considers

himself friendly to a number of suspected mobsters, and

that, as an attorney, he has represented their interests in

both civil and criminal proceedings. Even were we to

accept the accuracy of these additional records, it is

apparent that AP did not rely upon them in preparing its

reports, but instead discovered them in preparation for

the present litigation.

We believe that the lack of reliance is dispositive of the

issue of privilege. Judge Werker held that actual reliance

upon official records or documents is not a pre-requisite

to application of the fair report privilege. Instead, he

ruled, an accurate summary of official reports is privi-

leged even if the reports were not relied upon and the

accuracy of the summary is mere coincidence. As author-

ity for this ruling the Judge cited Medico v. Time, Inc.,

643 F.2d 134, 146-47 (3d Cir.), cert. denied, 454 U.S. 836,

102 S.Ct. 139, 70 L.Ed.2d 116 (1981). In Medico, the

plaintiff argued that the defendant could claim the § 611

lla

privilege only if, in preparing its report, it had actually

relied upon the official document in question. The Third

Circuit, citing Binder v. Triangle Publications, 442 Pa.

319, 275 A.2d 53 (1971), held for the defendant and

stated that Pennsylvania law “squarely contradicts” the

argument that actual reliance is necessary.

We believe that Medico reads Binder for much more

than it’s worth. In Binder, the Pennsylvania Supreme

Court held the privilege available where the defendant’s

reporter, who did not attend a judicial proceeding, based

his report of the proceeding on statements given him by a

third party who did attend. Said the Pennsylvania Court:

“({HJow a reporter gathers his information concerning a

judicial proceeding is immaterial provided his story is a

fair and substantially accurate portrayal of the events in

question.” 442 Pa. at 327, 275 A.2d at 58. Taken in

context, we believe this statement means only that the

privilege is available where a reporter who purports to

report on an official proceeding does not have personal

knowledge of the proceeding but instead relies on an

intermediary who does. That is, in Binder the reporter

ultimately relied on information obtained at the official

proceeding, he believed he was relying on official infor-

mation, and he wrote a report purporting to summarize

the proceeding. In contrast, if Medico is correct in hold-

ing that reliance is not required, a reporter’s unsubstan-

tiated defamatory statements, made independent of any

report of public proceedings, would be privileged if after-

the-fact the reporter could find some official record

embodying his statements. We do not believe that the

privilege should be applied to the latter situation. The

privilege is intended to facilitate media reporting of offi-

cial proceedings so that the public may be informed. See

Comment a to § 611 (“The basis of this privilege is the

12a

interest of the public in having information made avail-

able to it as to what occurs in official proceedings and

public meetings.”) By immunizing from defamation

liability accurate reports of newsworthy events, the privi-

lege helps to ensure media dissemination of official rec-

ords containing potentially defamatory material. In so

doing, the privilege serves an important public policy. See

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495, 95

S.Ct. 1029, 1046, 43 L.Ed.2d 328 (1975) (“Public records

by their very nature are of interest to those concerned

with the administration of government, and a_ public

benefit is performed by the reporting of the true contents

of the records by the media.”) However, the privilege

cannot be divorced from its underlying policy of en-

couraging the broad dissemination of public records. The

rule applied by the District Court does not serve that

policy because it does nothing to encourage the initial

reporting of public records and proceedings. Certainly

§ 611 should not be interpreted to protect unattributed,

defamatory statements supported after-the-fact through a

frantic search of official records. For where the media

does not directly or indirectly rely upon official records,

the policy underlying the privilege is inapplicable and the

privilege itself should not be applied.* We thus conclude

that AP is not entitled to summary judgment on the basis

of records upon which it did not actually rely.

AP claims that it did actually rely upon certain official

statements, namely the statements made to Carpenter by

the Crime Commission “officials.” In the present state of

the record, however, AP cannot rely upon those state-

4 Moreover, even where the reporter has actually relied on official

records, the privilege can be lost through failure to make proper

attribution. See Hughes v. Washington Daily News Co., 90 U.S. App.

D.C. 155, 193 F.2d 922 (1952).

l3a

ments as a basis for application of the § 611 privilege.

Carpenter has honored his agreement not to identify the

persons with whom he spoke, whom he describes as

“officials.” We have absolutely no quarrel with AP’s

contention that under Pennsylvania law AP cannot be

compelled to reveal the identities of Carpenter’s interloc-

utors. Pennsylvania’s “Shield Law,” 42 Pa. Cons. Stat.

Ann. § 5942(a) (1982) protects reporters from compelled

disclosure of their sources in any legal proceeding or trial.

This statute has been broadly construed by the Pennsylva-

nia courts, see In re Taylor, 412 Pa. 32, 193 A.2d 181

(1963), and is clearly operative in the present case. See

Mazzella v. Philadelphia Newspapers, Inc., 479 F. Supp.

523, 527 (E.D.N.Y. 1979) (Shield Law is not restricted to

cases in which newspaper or reporter is not a party.)

However, it is one thing to say that AP cannot be

compelled to reveal Carpenter’s sources and quite another

to say that AP can simultaneously base its claim to the

§ 611 privilege upon the statements of those sources.

Obviously the latter cannot be true. Only reports of

official statements or records made or released by a

public agency are protected by the § 611 privilege. State-

ments made by lower-level employees that do not reflect

official agency action cannot support the privilege. See,

e.g., Phillips v. Evening Star Newspaper Co., 424 A.2d

78, 89 (D.C. App. 1980), cert. denied, 451 U.S. 989, 101

S.Ct. 2327, 68 L.Ed.2d 848 (1981). Without knowledge of

the identities of the persons to whom Carpenter spoke, it

is impossible to say whether their statements constituted

official action within the scope of the privilege. We see

nothing in Pennsylvania law which requires us to give AP

the benefit of the doubt on the issue of the identities of

Carpenter’s sources. Nor do we believe that our holding

will defeat the purpose of the Shield Law to ensure a free

l4a

flow of information to the media by protecting reporters

from compelled disclosure. AP still may withhold the

identities of Carpenter’s sources and still may rely upon

their alleged statements in its defense. In fact, our ruling

does nothing more than recognize that a proponent can-

not rely upon a privilege if he fails to prove all of its

necessary elements.

We therefore reverse the grant of summary judgment to

AP on the basis of the § 611 privilege.

Judge Werker also based his grant of summary judg-

ment to AP on the constitutional “malice” standard of

New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct.

710, 11 L.Ed.2d 686 (1964). Under New York Times, a

“public official” may not recover for a defamatory state-

ment related to his official conduct unless he proves that

the defendant made his statement with “ ‘actual malice’—

that is, with knowledge that (the statement) was false or

with reckless disregard of whether it was false or not.”

376 U.S. at 280, 84 S.Ct. at 726. Judge Werker concluded

as a matter of law that as Borough Solicitor of the

Borough of West Pittston appellant was a “public offi-

cial.” He further concluded that appellant had failed to

raise a material issue of fact suggesting that AP had acted

with malice.

Appellant does not challenge Judge Werker’s finding

that AP did not act with malice. tastead, relying upon

Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997,

41 L.Ed.2d 789 (1974), he argues that he does not occupy

a position of sufficient responsibility in government to be

classified as a public official. He ulso argues that the

public official doctrine is inapplicable because AP’s state-

ments did not directly involve the performance of his

duties as Borough Solicitor. AP counters that appellant

indeed is a public official under the Supreme Court’s

lSa

definition of that term in Rosenblatt v. Baer, 383 U.S. 75,

86 S.Ct. 669, 15 L.Ed.2d 597 (1966). In Rosenblatt, the

Supreme Court stated that the term “public official”

extends “at the very least to those among the hierarchy of

government employees who have, or appear to the public

to have, substantial responsibility for or control over the

conduct of governmental affairs.” 383 U.S. at 85, 86

S.Ct. at 675. AP further argues that a town attorney’s

alleged mob ties “touch on” his fitness for office and

hence are covered by the public official doctrine. See

Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 217,

13 L.Ed.2d 125 (1964). Because we believe that both

parties’ arguments fail to address a crucial issue in this

case, we find it unnecessary to decide whether a part-time

appointed small-town attorney is a public official,’ or

whether AP’s statement in fact implicated appellant’s

fitness for office. Instead, we hold that, upon the present

record, AP is presumptively precluded from relying upon

the New York Times malice standard because its stories

5 Some cases have held that city, village, and municipal attorneys,

even those retained part-time or only in connection with specific

matters, are public officials. See, e.g., Finkel v. Sun Tattler Co., 348

So.2d 51 (Fla. App. 1977), cert. denied, 358 So.2d 135 (Fla. 1978);

Frink v. McEldowney, 29 N.Y.2d 720, 325 N.Y.S.2d 755, 275 N.E.2d

337 (1971); Ewald v. Roelofs, 120 Ill.App.2d 30, 256 N.E.2d 89 (1970).

However, we have serious doubts that the First Amendment rights of

the press require application of the public official doctrine to persons

holding positions such as that of Borough Solicitor of the Borough of

West Pittston. Obviously not every government employee is a public

official under Rosenbiatt. Is the public interest in the qualifications of

a part-time, appointed town counsel really so great that the counselor

must suffer defamation with little prospect of redress? The public

certainly has an interest in the qualifications of such minor town

officials, yet it also has an interest in the continued willingness of such

persons to devote their time and efforts to civic affairs. As the author

of one treatise has perceptively noted, see L. Eldredge, The Law of

Defamation § 51 at 271-72, extension of the public official doctrine

beyond its intended scope could well result in the loss to the commu-

nity of the services of its most talented citizens.

l6a

did not identify appellant as the holder of a public office.

Neither of AP’s stories identified appellant as the

Borough Solicitor of West Pittston or as the holder of any

public office. The stories described appellant merely as

“an attorney.” A reader without prior knowledge of

appellant’s status as Borough Solicitor would most likely,

and correctly, assume from the description that appellant

is engaged in the private practice of law. The description

would not directly or impliedly inform the reader that

appellant holds any public office. We conclude that the

public official doctrine is not available where the defen-

dant’s statements do not directly or impliedly identify the

plaintiff as a public official, and there is no showing that

the plaintiff’s name is otherwise immediately recognized

in the community as that of a public official.

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15

L.Ed.2d 597 (1966), the Supreme Court identified the

important interests which underlie the public official

doctrine adopted in New York Times. “There is, first,”

said the Court, “a strong interest in debate on public

issues, and, second, a strong interest in debate about

those persons who are in a position significantly to

influence the resolution of those issues.” 383 U.S. at 85,

86 S.Ct. at 675. These interests are not served by defama-

tory statements which do not identify their subject as a

public official. Such statements cannot foster debate on

public issues or officials for the simple reason that those

who read or hear the statements are never informed of the

statements’ relation to matters of public concern. At the

same time, the statements may significantly and adversely

affect the defamed individual’s personal and professional

lives. Under these circumstances, we believe that the

second important policy identified by the Rosenblatt

court, namely, society’s “pervasive and strong interest in

17a

preventing and redressing attacks upon reputation,” 383

U.S. at 86, 86 S.Ct. at 676, must prevail over the

defendant’s right to require proof of malice. We therefore

hold that appellant is in the position of a private individ-

ual and under Pennsylvania law, see infra, may recover

for defamatory statements upon proof of mere negli-

gence. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94

S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Of course, in some cases an individual’s status as a

public official may be so widely known throughout the

community that a direct or indirect identification of the

individual as a public official will be unnecessary to

application of the doctrine. A defamatory statement

which identifies the President of the United States, or a

state governor, by name only, would still fall under the

doctrine because the status of such persons as public

officials is common knowledge. Similarly, the doctrine

would apply to statements about an official of far lesser

stature if the statements are broadcast in the area within

the official’s jurisdiction and a significant portion of the

population in that area would recognize the official's

public status from his name alone. It suffices that in the

present case AP has made no showing of the degree to

which West Pittston residents recognize appellant, by

name, as the holder of a public office. We therefore hold

that as the record presently stands the public official

doctrine does not apply to this case.

The Supreme Court has not yet ruled upon the signifi-

cance of a news report’s failure to identify a public

officeholder as such. See Ocala Star-Banner Co. v.

Damron, 401 U.S. 295, 300 n.4, 91 S.Ct. 628, 632 n.4, 28

L.Ed.2d 57 (1971). Other courts, however, have reached

the same conclusion we reach here. See Foster v. Laredo

Newspapers, Inc., 541 S.W.2d 809, 815-16 (Texas 1976),

18a

cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d

573 (1977); Ocala Star-Banner Co. v. Damron, 221 So.2d

459 (Fla. App. 1969), appeal dismissed, 231 So.2d 822

(Fla. 1970), rev’d on other grounds, 401 U.S. 295, 91

S.Ct. 628, 28 L.Ed.2d 57 (1971). To the exient other

decisions have taken a contrary position, see Goodrick v.

Gannett Co., 500 F. Supp. 125 (D. Del. 1980); Stone v.

Essex County Newspapers, Inc., 367 Mass. 849, 330

N.E.2d 161, 171 (1975), we disagree.

Finally, AP asks us to hold that Pennsylvania law

requires appellant to prove malice. AP relies upon Matus

v. Triangle Publications, Inc., 445 Pa. 384, 286 A.2d 357

(1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2494, 33

L.Ed.2d 343 (1972), in which the Pennsylvania Supreme

Court held that liability may be imposed for defamatory

falsehoods related to matters of public interest only upon

proof of actual malice. Matus, however, was decided in

the interval between Rosenbloom v. Metromedia, Inc.,

403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), in

which a plurality of the Supreme Court held that private

figure plaintiffs must prove actual malice if the defama-

tory communication involves a matter of public concern,

and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct.

2997, 41 L.Ed.2d 789 (1974), in which the Supreme Court

held that states may permit private figure plaintiffs to

recover merely upon proof of “actual fault.” The ques-

tion before us is whether Pennsylvania continues to

adhere to the rule adopted in Matus in light of Gertz. The

Pennsylvania Supreme Court has not considered this

question and the issue, therefore, remains unsettled. See

Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 272 (3d

Cir. 1980); Lorentz v. Westinghouse Electric Corp., 472 F.

Supp. 946, 953 n.6 (W.D. Pa. 1979). We believe, however,

that if confronted by the question the Pennsylvania Su-

19a

preme Court would reject Matus and permit private

figure plaintiffs to recover upon proof of negligence. We

note that the large majority of state courts which have

decided private figure cases following Gertz have adopted

a negligence standard. See Denny v. Mertz, 106 Wis.2d

636, 651 n.20, 318 N.W.2d 141, 148 n.20 (1982) and cases

cited therein. More particularly, we are persuaded by the

reasoning of Judge Luongo in Mathis v. Philadelphia

Newspapers, Inc., 455 F. Supp. 406, 410-12 (E.D. Pa.

1978), that Matus no longer represents the law of Penn-

sylvania. Accord, Marcone v. Penthouse Intl., Ltd., 533

F. Supp. 353, 360-61 (E.D. Pa. 1982); Medico v. Time,

Inc., 509 F. Supp. 268, 277 n.7 (E.D. Pa. 1980), affd.,

643 F.2d 134 (3d Cir. 1981), cert. denied, 454 U.S. 836,

102 S.Ct. 139, 70 L.Ed.2d 116 (1981). We therefore hold

that Pennsylvania law does not require appellant to prove

“actual malice.”

Reversed and remanded.

(THIS PAGE INTENTIONALLY LEFT BLANK]

2la

Order Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

No. 82-7256

At a stated term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the fifteen day of

December, one thousand nine hundred and eighty-two.

CHARLES J. BUFALINO, JR.,

Plaintiff-Appellant,

—_—V—

THE ASSOCIATED PRESS,

Defendant-Appellee.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by counsel

for the defendant-appellee, The Associated Press,

Upon consideration by the panel that heard the appeal, it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc

has been transmitted to the judges of the court in regular active

service and to any other judge on the panel that heard the

appeal and that no such judge has requested that a vote be

taken thereon.

A. Daniel Fusaro, Clerk

/8/ FRANCIS X. GINDHART

by Francis X. Gindhart,

Chief Deputy Clerk

(THIS PAGE INTENTIONALLY LEFT BLANK]

23a

Opinion of the District Court

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

79 Civ. 6476 (HFW)

January 25, 1981

CHARLES J. BUFALINO,

Plaintiff,

—against—

THE ASSOCIATED PRESS,

Defendant.

APPEARANCES:

THOMAS A. ROTHWELL

2000 P Street, N.W.

Washington, D.C. 20036

Attorney for Plaintiff

ROGERS & WELLS

200 Park Avenue

New York, New York 10166

By: Richard N. Winfield

Louise Sommers

Of Counsel

Attorneys for Defendant

MEMORANDUM DECISION

HENRY F. WERKER, D.J.

Plaintiff, Charles J. Bufalino, Jr., commenced this libel

action against defendant, The Associated Press (“AP”), alleg-

ing that he was defamed by two news dispatches prepared and

24a

transmitted by AP in December, 1978. The matter is presently

before the court on defendant's motion for summary judg-

ment. For the reasons that follow, summary judgment is

granted for defendant.

In determining whether to grant a motion for summary

judgment, “the court cannot try issues of fact; it can only

determine whether there are issues to be tried.” American

Manufacturers Mutual Insurance Co, v. American Broadcast-

ing-Paramount Theatres, Inc., 388 2d 272, 279 (2d Cir.

1967). The affidavits and exhibits submitted by the parties

“must be viewed in the light most favorable to the party

opposing the motion.” United States v. Diebold, Inc., 369 U.S.

654, 655 (1962); see Quinn v. Syracuse Model Neighborhood

Corp., 613 F.2d 438, 444-45 (2d Cir. 1980). The burden is on

the moving party to demonstrate the absence of any material

factual issue genuinely in dispute. /d.; Heyman v. Commerce

and Industry Insurance Co., 524 ¥.2d 1317, 1320 (2d Cir.

1975).

Viewed in the light most favorable to the plaintiff, the

following facts appear. On December 7, 1978, the lists of

campaign contributors to the gubernatorial campaigns of

Richard L. Thornburgh and Peter Flaherty were filed in the

Pennsylvania state capitol in Harrisburg. Paul Carpenter, then

a newsman in the Harrisburg office of AP, reviewed the lists

that day. He recognized several names, including that of

plaintiff, as a result of his journalistic involvement in the areas

of law enforcement and organized crime activities in Pennsyl-

vania. He began to research the background of the individuals

whose names he recognized to confirm information about

them and to obtain additional information for a campaign

fund disclosure story. Plaintiff consulted materials from the

Pennsylvania Crime Commission, including its 1970 Report on

Organized Crime, AP files and his own working files. Newspa-

per articles reviewed by Carpenter reported that William E.

Bufalino, Sr., a Detroit lawyer, was a cousin and criminal

associate of Russell Bufalino, a reputed Mafia leader. In a

further effort to verify his information, Carpenter contacted

two other reporters known to him to be reliable and knowl-

25a

edgeable in the area of organized crime. One reporter told him

that Charles J. Bufalino, Jr. and Russell Bufalino were related

and the other told him that he was “pretty sure” that they were

related.

Carpenter also telephoned law enforcement personnel in the

Pennsylvania Crime Commission, whom he knew to be knowl-

edgeable and reliable in an attempt to verify his information

about Bufalino. Carpenter was informed by two Pennsylvania

Crime Commission officials that Charles J. Bufalino was

related to Russell Bufalino who was identified by the Crime

Commission as a Mafia leader. He was also told by a Crime

Commission official that Bufalino, an attorney, represented

individuals who the Crime Commission believed to be con-

nected with organized crime. The officials asked that Carpen-

ter not reveal their identities and Carpenter so agreed.

Following receipt of this information, Carpenter prepared a

story on the campaign fund disclosures for transmission to

morning newspapers in Pennsylvania. The story was reviewed

by Robert Dvorchak, the correspondent of the Harrisburg AP

Bureau, and transmitted to the AP Bureau in Philadelphia on

the evening of December 7, 1978.’

The story reported by the Scranton Times on December 8,

1978, and by the Wilkes-Barre Times-Leader Evening News on

December 9, 1978 stated:

l The release provided in pertinent port:

Governor-elect Richard L. Thornburgh and his defeated Demo-

cratic opponent Peter F. Flaherty filed official campaign disclosures

Thursday, saying they spent a total of $2.7 million in their cam-

paigns....

[Djonations of $120 each were listed from Fred Correale, Philip

Medico, and Charles Bufalino. The three were involved in the

Northwestern Pennsylvania Cable TV Co. and have been identified

as having ties to organized crime by the Pennsylvania Crime

Commission.

Exhibit 2 to affid. of Richard N. Winfield, sworn to June 9, 1980.

Plaintiff did not sue for damages arising from publication of this

release, however, and it is not even mentioned in the complaint.

26a

BACKERS’ LIST SURPRISES THORNBURGH-

Harrisburg (AP)—Governor-elect Richard L. Thorn-

burgh, who rose to fame by battling organized crime,

accepted political contributions from several individuals

with alleged mob ties, according to his campaign rec-

Obs < +s

Among the 14,000 contributors listed by Thornburgh

were:

. . . Charles Bufalino, Jr., an attorney who is related

to Russell Bufalino, described by the Crime Commission

as a Mafia boss. He gave $120... .

Complaint at § 7.

On the evening of December 7, 1981, Carpenter prepared a

rewrite of the campaign fund disclosure story. This story was

reported by the Scranton Times on December 9, 1978 and the

Wilkes-Barre Times-Leader Evening News on December 13,

1978. It stated:

THORNBURGH PLANS FUND RETURN TO 3

Harrisburg (AP)—Governor-elect Richard L. Thornburgh

will return campaign contributions to three individuals

who allegedly have ties to organized crime figures... .

“we are looking into whether Bufalino has documentable

links to organized crime but as of today we have been

unable to determine that... .”

Buffalino, an attorney, is related to Russell Bufalino,

indentified by state and federal investigative agencies as a

Mafia boss now in prison. . . .

Complaint at § 8.

Plaintiff contends that both reports were false and defama-

tory and that his personal and professional lives have been

damaged as a result. Under Pennsylvania law, two principal

issues must be addressed in analyzing a claim of libel. They are

whether the plaintiff has a cause of action for defamation,’

2 Under Pennsylvania law, a cause of action for defamation consists

of two elements. The first is that the communication must be defama-

tory in nature and understood as such by the recipient. The second is

27a

and if so, whether countervailing considerations concerning the

first amendment nevertheless bar recovery. Steaks Unlimited,

Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir. 1980).

AP’s principal contention on this motion for summary

judgment is that it may not be held liable under the common

law privilege accorded the press to report on official proceed-

ings, the fair report privilege. Under the formulation of the

fair report privilege set forth in the Restatement (Second) of

Torts:

The publication of defamatory matter concerning another

in a report of an official action or proceeding or of a

meeting open to the public that deals with a matter of

public concern is privileged if the report is accurate and

complete or a fair abridgement of the occurrence re-

ported.

that the communication must be uttered maliciously. . . .” Steaks

Unlimited, Inc. v. Deaner, 623 F.2d 264, 270 (3d Cir. 1980).

A defamatory communication under the law of Pennsylvania is:

a communication that ‘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, ‘it

is the function of the court, in the first instance, to determine

whether the communication complained of is capable of a defama-

tory meaning. . . . If the court. . . [so finds], it is for the jury to

determine whether it was so understood by the recipient. . . .”

Id, at 270.

The statement that an individua. has alleged mob ties, and is related

to a reputed Mafia boss, if believed by those reading the statement,

could well diminish an individual's reputation in the community and

injure him socially and professionally. Under the circumstances, | find

that the statements made in the AP reports were capable of a

defamatory meaning. It is for the trier of fact to determine whether the

statements in question were understood to be defamatory by the

recipients.

Under Pennsylvania law, a communication is malicious if uttered

“intentionally or negligently and ‘without just cause or excuse.’ ” This

component of a defamation action is “ ‘implied or presumed to exist

from the unprivileged publication of defamatory words actionable per

se.’ This presumption can be negated, however, by the defense that the

published material furthered ‘some interest of social importance which

is entitled to protection even at the expense of uncompensated harm to

the plaintiff's reputation.’ ” /d. at 271.

28a

Restatement (Second) of Torts § 611 (1977).

As recently observed by the Third Circuit in accepting the

Restatement version of the privilege as the law of Pennsylva-

nia:

. . . [T]}he law has long recognized a privilege for the

press to publish accounts of official proceedings or re-

ports even when these contain defamatory statements. So

long as the account presents a fair and accurate summary

of the proceedings, the law abandons the assumption that

the reporter adopts the defamatory remarks as his own.

The privilege thus permits a newspaper or other press

defendant to relieve itself of liability without establishing

the truth of the substance of the statement reported. [T]he

fair report privilege. . . can be defeated in most jurisdic-

tions by a showing that the publisher acted for the sole

purpose of harming the person defamed.

Medico v. Time, Inc., 643 F.2d 134, 137-38 (3d Cir.), cert

denied, 70 L. Ed. 2d 116 (1981).

In Medico, the court held that Time’s allegedly defamatory

publication concerning Philip Medico was protected by the fair

report privilege since the statements essentially were summaries

of FBI criminal investigatory files.’ The Medico court rejected

plaintiff’s contention that Time could “avail itself of the fair

report privilege only if it actually based its article on the FBI

materials” and that “if the report reflects the contents of the

office 1 materials merely by coincidence, the privilege does not

attach.” The court observed that Pennsylvania law “squarley

contradicted” this argument, and ruled that the manner in

which a press defendant obtained its knowledge of the infor-

mation contained in official documents is irrelevant under the

3 The documents relied on in Medico v. Time, Inc., 643 F.2d 134 (3d

Cir.), cert, denied, 70 L.. Ed. 2d 116 (1981), were an FBI report on “La

Cosa Nostra, Philadelphia Division” and a personal profile report on

Philip Medico. The FBI report was not generally available to the

public and expressed only tentative and preliminary conclusions never

adopted as accurate by the FBI.

29a

law of Pennsylvania, provided the story is a fair and accurate

account of the information contained in those documents.

Thus, in assessing AP’s fair report defense it must be

determined if questions of fact exist with respect to whether the

AP reports were fair and accurate accounts of information

contained in official reports at the time the stories were

published and if so, whether AP acted for the sole purpose of

harming plaintiff so as to defeat application of the privilege. In

undertaking this task, the content of the reports must be

scrutinized in order to determine whether the information

contained in the stories was attributable to them. Considera-

tion of the manner in which AP obtained knowledge of the

information contained in the documents is unnecessary, how-

ever, so long as the stories were fair and accurate accounts of

the information contained in official documents.

The statements complained of by plaintiff are (1) that he is

related to Russell Bufalino, (2) that Russell Bufalino has been

identified by state and federal officials as a Mafia boss, and (3)

that he, Charles Bufalino, Jr., is an individual with alleged ties

to organized crime.

There is no question that the statement that Charles J.

Buffalino, Jr. is related to Russell Bufalino is a fair and

accurate report of information contained in official state and

federal documents. First, a Federal Bureau of Investigation

memorandum captioned “Russell Buffalino [sic] . . . Top

Hoodlum Coverage, Philadelphia Division” dated July 20,

1956 and bearing place of origination, Philadelphia, Pennsyl-

vania states that “Subject’s [Russell Bufalino’s] local relatives

are... a cousin, Charles J. Buffalino, Jr., [sic] a local

attorney. . . .” Exhibits 81 and 82 to Supplemental Affidavit

of Richard N. Winfield. Second, the Pennsylvania Crime

Commission informally but officially reported to Carpenter

that plaintiff was related to Russell Bufalino.* See Mathis v.

4 Plaintiff contends that the affidavit of Paul Carpenter which states

that two unidentified officials from the Pennsylvania Crime Commis-

sion reported to him that Charles J. Bufalino Jr. was related to Russell

Bufalino is inadmissible on this motion for summary judgment.

(footnote continued)

30a

Philadelphia Newspapers, Inc., 455 F. Supp. 406 (E.D. Pa.

1978); Restatement (Second) of Torts § 611, Comments d & e

(1977). Third, several other official reports’ which contain

Fed. R. Civ. PB. 56(e) provides that “[sJupporting and opposing

affidavits shall be made on personal knowledge [and] shall set forth

such facts as would be admissible in evidence. . . .” The issue here,

therefore, is whether Carpenter's statements that two unidentified

officials of the Crime Commission reported to him that Charles J.

Bufalino, Jr. was related to Russell Bufalino would be admissible at

trial. In analyzing this question, Pennsylvania's shield law must be

considered. The statute provides:

No person engaged in, connected with, or employed by any newspa-

per of genera! circulation or any press association, . ., for the

purpose of gathering, procuring, compiling, editing or publishing

news, Shall be required to disclose the source of any information

procured or obtained by such persons, in any legal proceeding, trial

or investigation before any government unit.

42 Pa. Cons. Stat. Ann. § 5942(a) (Supp. 1979),

As recently discussed by the Third Circuit:

The shield statute. . . [represents] ‘a wise and salutary declaration

of public policy’ that must ‘be liberally and broadly construed in

order to carry out the clear objective and intent of the Legislature

which has placed the gathering and the protection of the source of

news as of greater importance to the public interest and of more

value to the public welfare than the disclosure of the alleged

[misconduct].’ The term ‘source of information,’ . . . ‘means not

only the identity of the person, but likewise includes documents,

inanimate objects and all sources of information,’

Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir. 1980), (quoting

In re Taylor, 412 Pa, 32, 193 A.2d 181 (1963).

On the basis of the foregoing, I hold that if Carpenter were to testify

at trial to the statements allegedly made by the unidentified Crime

Commission officials, those statements would be admissible. Accord-

ingly, the statements contained in Carpenter's affidavit are admissibie

on this motion for summary judgment.

5 Russell Bufalino testified in deportation proceedings before the

Immigration and Naturalization Service, that Charles J. Bufalino, the

lawyer, was a cousin of his. Plaintiff's Ex. 7 at 776, Plaintiff's uncle,

William Bufalino, also stated that he is related to Russell Bufalino of

Kingston, Pennsylvania, in an affidavit sworn to on February 15,

1967. This affidavit was made in connection with Russell Bufalino’s

deportation case. Plaintiff's Ex. 6. Finally, the Final Report of the

Select Committee on Improper Activities in the Labor or Management

3la

information about Russell Bufalino’s family relationships

unambiguously disclose the purported relationship between

Russell Bufalino and Charlies J. Bufalino, Sr., plaintiff's de-

ceased father, and Russell Bufalino and William Bufalino,

plaintiff's uncle. Although these documents do not mention

any relationship between plaintiff and Russell Bufalino, they

lead ineluctably to the conclusion that Charles J. Bufalino, Jr.

is related to Russell Bufalino. Consequently, I find that AP

also may rely on these documents in establishing that the

statement that plaintiff is related to Russell Bufalino is a fair

and accurate statement of information contained in official

reports.

Based upon all of the foregoing, | find that no question of

fact exists with respect to whether defendant's statement that

plaintiff Charles J. Bufalino, Jr. is related to Russell Bufalino

is a fair and accurate report of information contained in

official documents.

There also is no question of fact concerning whether the

statement that Russell Bufalino has been identified as a Mafia

boss by state and federal officials is a fair and accurate report

of information contained in official state and federal docu-

ments. In Hearings before the Permanent Subcommittee on

Investigations of the Committee on Government Operations,

United States Senate, dated July 30, 1964, it is reported that

Russell Bufalino is “one of the most ruthless and powerful

leaders of the Mafia in the United States.” P’s Ex. 10 at 1016.°

Field of the United States Senate, dated March 28, 1960, states as

follows: “Russell Bufalino. . . is a cousin of William E. Bufalino, the

head of local 985 of the Teamsters Union in Detroit.” Plaintiff's Ex. 8,

It is undisputed that William Bufalino is plaintiff's uncle. Plaintiff's

Rule 9(g) statement, 4 9.

6 Although the news stories did not explicitly credit the FBI reports or

the statements of the unidentified Crime Commission officials as the

sources of their information, the statements when taken in context,

may reasonably be understood to inform the reader that the stories

were based on FBI and Crime Commission reports. The articles

therefore should be treated as summaries of purportedly “official”

government reports. See Medico v. Time, Inc., 643 F.2d at 139 n.17,

(citing Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406, 416

(E.D. Pa. 1978)).

32a

The next statement that must be considered is the statement

that plaintiff is an individual with alleged ties to organized

crime. AP argues that there is ample evidence in reports of

official government agencies establishing plaintiff's family,

social, business, and professional dealings with organized

crime to render the statement that he is an individual with

alleged mob ties a fair and accurate summary of the statements

contained in those reports.

As is apparent from the discussion above, plaintiff's family

ties to organized crime are documented in several official

reports. In addition, plaintiff’s professional representation of

individuals connected with organized crime was informally but

officially reported to Carpenter by an unidentified official of

the Pennsylvania Crime Commission. See Mathis v. Phila-

delphia Newspapers, Inc., 455 F. Supp. 406 (E.D. Pa. 1978);

Restatement (Second) of Torts § 611, Comments d & e (1977).’

Although plaintiff vigorously disputes the truth of these

statements, I am constrained to conclude that the statement

that plaintiff is “an individual with alleged mob ties” is a fair

and accurate summary of information contained in official

reports. While the phrase “alleged mob ties” may be inter-

preted to mean financial, criminal and social ties rather than or

in addition to family relationship and professional representa-

tion of clients,* I find these alternate interpretations untenable

7 As discussed in the Restatement:

The privilege covered in this Section extends to the report of any

official proceeding, or any action taken by any officer or agency of

the government of the United States, or of any State or of any of its

subdivision. . . . [T]he privilege includes the report of any official

hearing or meeting, even though no other action is taken. The filing

of a report by an officer or agency of the government is an action

bringing a reporting of the governmental report within the scope of

the privilege. The privilege is thus applicable to the report of

proceedings before any court... .

Restatement (Second) of Torts § 611, Comments d & e (1977).

The Restatement does not consider reports of pleadings to be

covered by the privilege unless some official action has been taken by

the court with respect to the action. /d. at Comment e.

8 The court is reluctant to conclude that the statement that an

individual represents clients with alleged mob ties or evidence of

rey

33a

in the context of the AP stories. Both stories, after using the

phrase “alleged mob ties” proceed to mention the purported

family link between plaintiff and Russell Bufalino. Under the

circumstances, the only fair interpretation of the phrase “al-

leged mob ties” as used in the AP stories, and indeed, the only

one suggested in the stories, is family ties. Since, as noted

above, the purported family ties between plaintiff and Russell

Bufalino are well-documented in official reports, | must con-

clude that the statement is a fair and accurate summary of

information contained in official reports.

The next issue that must be considered in assessing AP’s fair

report defense is whether there is a question of fact as to

whether AP employees acted for the sole purpose of harming

plaintiff. The employees of AP responsible for the publica-

tion of the statements in question, Paul Carpenter, Robert

Dvorchak, and Herbert Pelkey, all have stated in sworn affi-

davits that they did not write any stories for the purpose of

harming the plaintiff and plaintiff has not offered a shred of

evidence to refute this. Affid. of Paul Carpenter, sworn to

June 2, 1980 at 4 14; Affid. of Robert Dvorchak, sworn to

June 2, 1980, at 4 9; Affid. of Herbert Pelkey, sworn to June

4, 1980 at 48. “When a motion for summary judgment is

made and supported [by affidavit], an adverse party may not

rest upon . . . his pleading, but . . . must set forth specific

facts showing that there is a genuine issue for trial.” Fed. R.

Civ. P. 56. Consequently, | find that plaintiff has failed to raise

a question of fact with respect to whether AP employees acted

for the sole purpose of harming him.

Based upon the foregoing, I hold that each of the three

statements in issue was protected by the fair report privilege

and that summary judgment should be granted for defendant

on the basis of the fair report privilege.

Even if questions of fact were to exist with respect to

whether AP’s statement that plaintiff is an individual with

litigation backs evidencing representation of individuals believed to be

connected with organized crime is more than an indication of profes-

sional representation.

34a

alleged mob ties is a fair summary of information contained in

an official report, | find that there are no questions of fact as

to whether AP acted with actual malice as defined in New York

Times Co. v. Sullivan, 376 U.S. 254 (1964), and that summary

judgment for AP is appropriate on this ground as well.

Although AP sets forth several arguments in support of the

application of the actual malice standard, the court will con-

fine its discussion to plaintiff’s status as a public official.

Plaintiff is the Borough Solicitor for the Borough of West

Pittston, Pennsylvania and was the Borough Solicitor at the

time of the alleged libel. The Borough Solicitor is appointed by

the Borough Council which is an elected body of legislators.

The function of the Borough Solicitor is to advise the Council

in legal matters when his advice is sought from the Council as a

whole or a majority thereof. The Borough Solicitor is compen-

sated on a yearly basis from the Borough budget. Accordingly,

plaintiff must be considered a public official for purposes of

first amendment analysis. See Time, Inc. v. Pape, 401 U.S. 279

(1971) (Deputy Chief of Detectives of Chicago Police Depart-

ment is public official).

To prevail on his claim, a public official must prove with

convincing clarity that the defendant published false state-

ments, knowing of their falsity or with reckless disregard of the

truth. Consequently, this court must determine whether there is

a genuine issue of material fact with respect to whether the

statement that plaintiff is an individual with alleged mob ties

was false and whether AP acted with actual malice, that is with

knowledge that the statement was false or with reckless disre-

gard of whether the statement was false or not. See Ocala

Star-Banner Co. v. Damron, 401 U.S. 295, 299 (1971); Steaks

Unlimited, Inc. v. Deaner, 623 F.2d 264, 275 (3d Cir. 1980).’

Plaintiff has vigorously disputed that he is in any way

connected with any criminal activities, organized or otherwise.

He further contends that he is not related to Russell Bufalino.

9 There is no question that a charge of alleged ties to organized crime

is relevant to the issue of plaintiff’s fitness to hold public office. See

Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 300 (1971).

35a

He has presented the affidavit of Ettore S. Agolino, an

individual who claims to have personal knowledge of the

histories of the various Bufalino family lines, which states that

there is no blood relationship between plaintiff and Russell

Bufalino. In addition, plaintiff has submitted the affidavit of

Wayne Smith, a former agent of the FBI in the Philadelphia

Division, with the responsibility between 1965 and 1976 of

investigating organized crime in the Wilkes-Barre-Scranton

area. Mr. Wayne stated that to his “knowledge, plaintiff has

never been involved in any organized criminal activities nor in

any criminal activity.” He also stated that he has “known

Charles J. Bufalino, Jr., for about ten (10) years and know[s]

him to be a reputable attorney, a respected individual in his

community, and a good citizen. . . .”

Thus, although AP has submitted numerous records which

indicate legal representation and other relationships with cer-

tain individuals purportedly associated with organized crime,

the affidavits submitted by plaintiff are sufficient to raise

genuine issues of fact as to the truth of the statement that

plaintiff has alleged ties to organized crime. For the reasons

that follow, however, I find that there are no questions of fact

concerning whether AP published the statement that Charles

Bufalino, Jr. is an individual with alleged mob ties knowing of

its falsity or with reckless disregard for the truth. See Steaks

Unlimited, Inc. v. Deaner, 623 F.2d 264, 276-77 (3d Cir. 1980).

In analyzing whether AP acted with reckless disregard of the

truth or with knowledge that the statement was false, the

actions of Paul Carpenter in investigating whether Charles J.

Bufalino, Jr. had “alleged mob ties” must be considered. As

previously noted, Carpenter examined Pennsylvania Crime

Commission reports, AP files and his own files, and contacted

two other reporters as well as the Pennsylvania Crime Com-

mission in an effort to verify his information about plaintiff.

He received verification from one reporter and two Crime

Commission officials that plaintiff was related to Russell

Bufalino and one reporter stated that he was “pretty sure” that

the two were related. In addition, one official from the Crime

Commission stated that Bufalino represented clients whom the

36a

Crime Commission believed to be connected with organized

crime.

Plaintiff has not disputed these facts. His only contention

with respect to the actual malice issue is that plaintiff was

aware that there was more than one Charles Bufalino and that

plaintiff should have been on notice as to the reliability of the

information concerning plaintiff's purported family relation-

ship with Russell Bufalino when Paul Gollas of the Wilkes-

Barre Times-Leader Evening News was not certain as to the

family relationship.

As plaintiff has failed to raise a genuine issue of fact about

the procedures employed by AP in verifying its information

and has presented nothing more than the bald assertion that

Carpenter and Dvorchak had no reason to believe that the

dispatches were accurate, the issue of whether AP acted with

actual malice will be decided as a matter of law.

In St. Amant v. Thompson, 390 U.S. 727 (1968), the Court

ruled that “for libel against a public figure to be proved,

‘[t}here must be sufficient evidence to permit the conclusion

that the defendant in fact entertained serious doubts as to the

truth of his publication. Publishing with such doubts shows

reckless disregard for truth or falsity and demonstrates actual

malice.’ ” Dickey v. CBS, Inc., 583 F.2d 1221, 1223 (3d Cir.

1978) (quoting St. Amant v. Thompson, 390 U.S. at 731). The

record in this case is completely devoid of evidence of actual

malice. The statements concerning plaintiff were published

only after Carpenter reviewed AP files and his own files and

only after consultation with five other individuals who were

known by Carpenter to be reliable and knowledgeable. The

fact that one of the sources contacted by Carpenter was

uncertain that plaintiff and Russell Bufalino were related is

insufficient to create an inference that Carpenter or Dvorchak

entertained serious doubts about the truth of the publications.

See Dickey v. CBS, Inc., 583 F.2d at 1227-29.

37a

CONCLUSION

In accordance with the above, summary judgment is granted

with respect to the statements that plaintiff is related to Russell

Bufalino, identified by state and federal officials as a Mafia

boss and that plaintiff is an individual with alleged mob ties.

Defendant is directed to submit judgment on notice within 10

days after entry of this order.

SO ORDERED.

Dated: New York, New York

January 25, 1982

/S/ HENRY F. WERKER

U.S.D.J.

(THIS PAGE INTENTIONALLY LEFT BLANK]

39a

U.S. Court of Appeals, Third Circuit

Decision in Medico v. Time, Inc.

No. 80-2077.

United States Court of Appeals, Third Circuit.

Argued Dec. 1, 1980.

Decided March 2, 1981.

Rehearing and Rehearing In Banc

Denied March 27, 1981.

MEDICO, Philip T.,

Appellant,

—)—

TIME, INC.

_—_

Before

ADAMS, GARTH and SLOVITER,

Circuit Judges.

F. Emmett Fitzpatrick, Jr., Philadelphia, Pa., Charles J.

Bufalino, Jr. (Argued), West Pittston, Pa., for appellant.

Peter Hearn (Argued). M. Duncan Grant, Richard W. Foltz,

Jr., Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appel-

lee, Robert P. Marshall, Jr., Time Inc., New York City, of

counsel.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This appeal from a summary judgment in favor of the

defendant presents an important question concerning the law

of defamation. We must review the district court’s determina-

40a

tion that a news magazine enjoys a privilege, under the com-

mon law of Pennsylvania, to publish a summary of FBI

documents identifying the plaintiff as a member of an or-

ganized crime “family.” We affirm.

In its March 6, 1978 issue, Time magazine published an

article describing suspected criminal activities of then-Con-

gressman Daniel J. Flood. The article stated that Stephen

Elko, a former Flood aide, had characterized the Congressman

as a “muscler”—an official who used his considerable in-

fluence to direct federal contracts to individuals and companies

that responded with cash. The article further stated that at

least eight separate United States Attorneys’ offices had under-

taken investigations of Flood’s activities.

As an example of suspected misconduct, the Time article

listed the following:

Among the matters under scrutiny: Ties between Flood

and Pennsylvania Rackets Boss Russell Bufalino. The

suspected link: the Wilkes-Barre firm of Medico Indus-

tries, controlled by President Philip Medico and his

brothers. The FBI discovered more than a decade ago that

Flood steered Government business to the Medicos and

traveled often on their company jet. Investigators say

Bufalino frequently visited the Medico offices; agents

tape-recorded Bufalino’s description of Philip as a capo

(chief) in his Mafia family. Elko’s testimony has sparked

new investigative interest in the Flood-Medico-Bufalino

triangle.

Circulation of the March 6, 1978 issue of Time exceeded four

million copies.

Following publication of the article, Medico instituted a

defamation action against Time, Inc., in federal district court

on the basis of diversity jurisdiction.’ Medico alleged that the

| 28 U.S.C. § 1332(a) (1976). At the time he filed the complaint,

Medico was a citizen of Pennsylvania. Time, Inc., is incorporated

4la

article’s import was that he held a high position in an or-

ganized criminal society.

Time initially moved for summary judgment in June 1979. It

asserted that the substance of the article was not that Medico

actually participated in criminal activities, but only that FBI

agents had recorded Russell Bufalino’s description of Medico

as a Mafia capo. Time argued that this latter statement was

true. In support of its motion, Time submitted the affidavit of

John Danahy, a former FBI official, and two documents—an

FBI report on “La Cosa Nostra, Philadelphia Division,” and a

personal profile report on Philip Medico—which Danahy iden-

tified as official FBI documents. Both documents state that an

“informant” alternately code-named “PHT-3” and “PH 591-

C*” has identified Medico as a close associate of Russell

Bufalino and a “capo” or “capodecina” in La Cosa Nostra.

The affidavit states that La Cosa Nostra is the FBI’s term for

the Mafia, and that the “informant” was not a person, but an

electronic listening device, by means of which a recording had

been made.

The district court agreed with Time that the substance of the

allegedly defamatory article was that the FBI had recorded

Bufalino’s identification of Medico as an underworld leader. It

concluded, however, that the supporting documents which

Time submitted did not resolve all genuine issues concerning

the truth of its report. Although the FBI documents corrobo-

rated the Time article, the court ruled that the affidavit Time

had advanced to authenticate the documents was not based on

the personal knowledge of the affiant, as required by Rule

56(e). The court therefore denied Time’s motion for summary

judgment.

In January 1980, Time again moved for summary judgment

based on the substantial truth of its publication. Time resub-

mitted the two FBI documents it had proffered to support its

initial motion, supplemented with affidavits of two FBI agents.

One affiant, David Breen, had supervised an investigation of

under the laws of Illinois with its principal place of business in New

York.

42a

organized crime that the FBI’s Philadelphia Office had con-

ducted. He stated that the Philadelphia Office had prepared

the report on La Cosa Nostra at his direction, and that

Medico’s personal profile card had been prepared and main-

tained by the FBI. Breen further stated that, based on his

personal experience with the FBI, he knew from the code

names assigned the “informant” that the information in the

documents was derived from a tape-recording made by means

of an electronic listening device and transcribed by highly

trained individuals capable of identifying the voices of the

persons recorded. The other affiant, Patrick Collins, also had

served in a supervisory position with the FBI. He confirmed

Breen’s interpretation of the documents, primarily on the basis

of his “general experience with similar such reports.”

On this occasion the district court granted Time’s motion for

summary judgment, but not on the basis of the truth defense.

The court expressed doubt about its earlier conclusion that, in

order to prevail on a truth theory, Time need only establish

that FBI agents recorded Bufalino’s description of Medico,

rather than that Medico was in faci a Mafia chieftain. The

court acknowledged that Pennsylvania law might require proof

of the underlying assertion, but decided it did not have to

resolve the issue; the court concluded that, whether the state-

ment sued upon be given a broad or narrow scope, the

evidentiary affidavits that Time submitted failed to establish

the truth defense. Although the court found that the affidavits

established the authenticity of the FBI report and personal file

card as FBI materials, it also determined that neither affiant

had personal knowledge of the “factual basis” for the docu-

ments. Neither Breen nor Collins had installed the listening

devices allegedly used in recording Bufalino’s conversations,

had transcribed the recorded conversations, or had personal

knowledge of the identity of all the participants in the relevant

conversations.

After declining to hold for Time on the truth theory, the

district court considered whether the Time article fell within

the common law privilege accorded the press to report on

official proceedings. The judge seemed troubled because Penn-

43a

sylvania courts apparently had so far extended the privilege

only to reports of proceedings open to the public, whereas

Time had summarized reports which the FBI had kept secret

and whose release to Time evidently had been unauthorized.

But after an exhaustive analysis of Pennsylvania precedents,

the court concluded that Pennsylvania courts, if presented with

the question, would find summaries of non-public government

reports within the privilege. The district judge then ascertained

that the Time article represented a fair and accurate account of

the FBI documents. Accordingly he held that the publication

was privileged, and awarded summary judgment in favor of

Time.

On appeal, Medico argues that the district court incorrectly

determined that Time’s publication was privileged under Penn-

sylvania law. Time counters that the district judge accurately

construed the applicable state law on privilege, and contends

further that the defense of truth applies and affords an

alternate basis for affirming the district court. Our analysis of

the district court’s result will entail examination of the state

law precedents regarding the fair report privilege, of the

policies underlying them, and of Constitutional constraints on

defamation law.’

2 A threshold inquiry is which state’s substantive law applies to this

diversity action. The parties implicitly agree that Pennsylvania law

governs, and the district court applied Pennsylvania law. Inasmuch as

Pennsylvania has an interest in the outcome of this litigation—the

target of the alleged defamation is a Pennsylvania resident and the

issue Of Time magazine containing the allegedly libelous article was

circulated throughout the state—this Court has no cause sua sponte to

challenge the choice of Pennsylvania law. See Steaks Unlimited, Inc. v.

Deaner, 623 ¥.2d 264, 269-70 (GQd Cir. 1980); Pierce v. Capital Cities

Communications, Inc,, 576 F.2d 495, 501-02 (Ad Cir), cert. denied, 439

U.S. 861, 99 S.Ct. I81, 58 L.Ed. 2d 170 (1978).

Under Pennyslivania law, a defamation claim consists of two basic

elements, First, the communication must be defamatory in nature and

understood as such by the recipient. Corabi v. Curtis Publishing Co.,

441 Pa. 432, 441-42, 273 A.2d 899, 904 (1971); 42 Pa. Cons. Stat.

Ann. § 8343(a)(1) to (4) (Supp. 1979), Before this court, Time does not

dispute the defamatory nature of its statements concerning Medico.

Second, the communication must be uttered maliciously—that is,

44a

The fair report privilege on which the district court relied

developed as an exception to the common law rule that the

republisher of a defamation was subject to liability similar to

that risked by the original defamer.' Pennsylvania had adopted

the republication rule by the turn of the century,’ and no case

brought to our attention suggests that Pennsylvania has aban-

doned it. With this rule, the law indulged the fiction that the

republisher of a defamatory statement “adopted” the state-

ment as his own.® The common law regime created special

problems for the press. When a newspaper published a news-

worthy account of one person’s defamation of another, it was,

by virtue of the republication rule, charged with publication of

the underlying defamation. Thus, although the common law

intentionally or negligently and “without just cause or excuse.” Corabi

v. Curtis Publishing Co., 441 Pa. at 451, 273 A.2d at 909; 42 Pa.

Cons. Stat. Ann. § 8344 (Supp. 1979). This malice component is

“implied or presumed to exist from the unprivileged publication of

defamatory words actionable per se.” Corabi v. Curtis Publishing Co.,

441 Pa. at 451, 273 A.2d at 909 (emphasis deleted). On this appeal,

then, the sole issue is whether Time can negate the presumption of

malice by establishing that its publication was privileged.

3 See W. Prosser, Handbook of the Law of Torts 798 & n.13 (4th ed.

1971); Note, Privilege to Republish Defamation, 64 Colum. L. Rev.

1102, 1102 (1964).

4 See Oles v. Pittsburgh Times, 2 Pa. Super. 130, 142 (1896) (“One

who. . . repeats a defamatory, accusation is deemed to have published

it, and is liable to action although he gives the name of the author.”);

Stepp v. Croft, 18 Pa. Super. 101 (1901).

5 Cf. Hoover v. Peerless Publications, Inc., 461 F. Supp. 1206, 1208

(E.D. Pa. 1978) (construing Pennsylvania law) (citing “the black-letter

rule that one who republishes a libel is subject to liability just as if he

had published it originally, even though he attributes the libelous

statement to the original publisher”).

6 See R. Sack, Libel, Slander, and Related Problems § 11.6.1, at 86-87

(1980); Robertson, Defamation and the First Amendment: In Praise of

Gertz v. Robert Welch, Inc., 54 Tex. L. Rev. 199, 262-63 (1976).

45a

exonerated one who published a defamation as ion a» the

statement was true,’ a newspaper in these circumstances tradi-

tionally could avail itself of the truth defense only if the truth

of the underlying defamation were established."

To ameliorate the chilling effect on the reporting of news-

worthy events occasioned by the combined effect of the re-

publication rule and the truth defense, the law has long

recognized a privilege for the press’ to publish accounts of

official proceedings or reports even when these contain defam-

atory statements. So long as the account presents a fair and

7 See Restatement (Second) of Torts § S81A (1977).

8 The following example is given in Oles v. Pittsburgh Times, 2 Pa.

Super. 130, 142 (1896): if J.S. publishes that he heard J.A. say that

J.G. was a traitor or a thief, then “J.S. must prove that J.G. was a

traitor or a thief in order to make a complete defense.”

Although the common law placed the burden of proving truth on the

defendant, this allocation may run afoul of recently announced consti-

tutional principles. See note 38 infra. Because we dispose of the

present case on the basis of the fair report privilege, we have no

occasion to resolve this constitutional issue, or to consider whether

Pennsylvania courts would continue to apply the republication rule to

a newspaper account of defamatory remarks, see Part VIL & note 42

infra.

9 There is some dispute whether the privilege is available to non-press

defendants. The Restatement suggests that “any person who makes an

oral, written or printed report” on an official proceeding should have

access to the defense. Restatement (Second) of Torts § 611. Comment ¢

(1977). While some states adhere to this approach, see, e.g., N.Y. Civil

Rights Law § 74 (McKinney 1976); Ohio Rev. Code Ann, § § 2317.04-

05 (Page 1953); Okla. Stat. tit. 12, § 1443 (1971), other states grant the

privilege only to specified press defendants, see, e.g., Mich. Comp.

Laws Ann. § 600.2911(3) (West 1968) (“reporter, editor, publisher or

proprietor of a newspaper”); N.J. Stat. Ann. § 2A:43-1 (West Supp.

1976) (“publication in any newspaper”). Although Pennsylvania, as

far as we can teil, has not delineated the availability of the privilege, in

light of the identity of defendant Time, Inc., we need not decide at this

time whether Pennsylvania would allow non-media defendants to

claim the fair report privilege.

- ee ~

46a

accurate summary of the proceedings,’” the law abandons the

assumption that the reporter adopts the defamatory remarks as

his own.'' The privilege thus permits a newspaper or other

press defendant to relieve itself of liability without establishing

the truth of the substance of the statement reported. The fair

report privilege has a somewhat more limited scope than the

truth defense, however. So long as the speaker establishes the

truth of his statement, he is shielded from liability, regardless

of his motives; the fair report privilege, on the other hand, can

be defeated in most jurisdictions by a showing that the

publisher acted for the sole purpose of harming the person

defamed."

Unlike many states,'’ Pennsylvania has never codified the

fair report privilege. In addition, while Pennsylvania follows

i0 See Restatement (Second) of Torts § 611 (1977); W. Prosser, supra

note 3, at 832.

11 = See R. Sack, supra note 6, § V1.3.7, at 316 & n.213. Analytically, the

fair report privilege is similar to the truth defense. Both make verity

the issue, although requiring that a report be fair and accurate may

allow the press a somewhat greater margin of error than requiring that

its report be true. In those cases where a plaintiff claims that republica-

tion of an official report defamed him not by conveying the underlying

defamation, but by leading the reading public to believe that a

government agency had leveled defamatory charges against him, the

two defenses are effectively “merged.” The common law defense of

truth would turn on whether the government actors had in fact so

charged the plaintiff, and the fair report privilege would focus on the

same inquiry. See Sowle, Defamation and the First Amendment: The

Case for a Constitutional Privilege of Fair Report, 54 N.Y.U.L.Rev.

469, 506-07 (1979).

12 See 1 F. Harper & F. James, The Law of Torts 450-56 (1956). For

this reason, truth generally is referred to as an “absolute,” and fair

report as a “conditional,” privilege. See generally Sack, supra note 6,

§ V1.1.

13 For examples of statutory versions of the privilege, see Cal. Civ.

Code § 47 (West 1954); Ga. Code Ann. § 105-704 (1978); N.J. Stat.

Ann. § 2A:43-1 (West Supp. 1978); N.Y. Civil Rights Laws § 74

(McKinney 1976); Ohio Rev. Code Ann. § 2317.04 (Page 1953); Wis.

47a

the Restatement (Second) of Torts on most matters,'* the

Pennsylvania Supreme Court evidently has not yet had occa-

sion to comment on the Restatement’s version of the fair

report privilege. Earlier, however, the state courts had endorsed

the privilege as set forth in the original Restatement,'* and this

edition was similar in most respects to the more recent one. We

believe it appropriate to accept as the law of Pennsylvania the

version of the fair report privilege embodied in the current

Restatement.'°

Section 611 of Restatement (Second) provides:

Report of Official Proceeding or Public Meeting

The publication of defamatory matter concerning another

Stat. § 895.05 (1975). Application of the privilege varies trom state to

state. See Comment, Constitutional Privilege to Republish Defama-

tion, 77 Colum. L. Rev. 1266, 1275 n.72 (1977).

14 See Gilbert v. Korvette, Inc., 457 Pa. 602, 611 n.25, 327 A.2d 94,

100 n.25 (1974) (“In recent years, this Court has not hesitated to adopt

sections of the Restatement (Second) of Torts (1965) when our com-

mon-law precedents varied from the Restatement or when the Pennsyl-

vania common law provided no answer.”).

15 See Binder v. Triangle Publications, Inc., 442 Pa. 319, 324, 275 A.2d

53, 56 (1971); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167,

177, 191 A.2d 662, 667 (1963); Sciandra v. Lynett, 409 Pa. 595, 600,

187 A.2d 586, 589 (1962). Section 611 of the original Restatement of

Torts provided:

REPORTS OF JUDICIAL, LEGISLATIVE, AND EXECUTIVE

PROCEEDINGS.

The publication of a report of judicial proceedings, or proceedings

of a legislative or administrative body or an executive officer of the

United States, a State or Territory thereof, or a municipal corpora-

tion or of a body empowered by law to perform a public duty is

privileged, although it contains matter which is false and defama-

tory, if it is (a) accurate and complete or a fair abridgment of such

proceedings, and (b) not made solely for the purpose of causing

harm to the person defamed.

16 Accord, Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406,

415 (E.D. Pa. 1978); see Hanish v. Westinghouse Broadcasting Co.,

487 F. Supp. 397 (E.D. Pa. 1980) (assuming without elaboration that

§ 611 of Restatement (Second) represents the law of Pennsylvania).

48a

in a report of an official action or proceeding or of a

meeting open to the public that deals with a matter of

public concern is privileged if the report is accurate and

complete or a fair abridgement of the occurrence re-

ported.

With respect to the present controversy, the basic inquiry is

whether Time’s summary of FBI documents concerning Philip

Medico is “a report of an official action or proceeding.” "”

The district court examined and rejected the possibility that

the FBI reports in question are not “official” because they are

not generally available to the public. Medico does not chal-

lenge this reasoning on appeal, and we perceive no need to

rehearse arguments that the district court has already can-

vassed. Medico contends before this Court that the FBI docu-

ments should not be deemed “official” because they express

only tentative and preliminary conclusions that the FBI has

never adopted as accurate. He points out that the title page to

the FBI report on La Cosa Nostra bears the following legend:

“This document contains neither recommendations nor conclu-

sions of the FBI. It is the property of the FBI and is loaned to

your agency; it and its contents are not to be distributed

outside your agency.”

Neither the text of Section 611 nor the accompanying com-

ments dispose of the issue Medico raises. Section 611 itself

17 Although the Time article did not explicitly credit the FBI Report on

La Cosa Nostra or the FBI personal file card on Medico as the

Magazine’s sources of information, the statements about Medico,

taken in context, may reasonably be understood to inform the reader

that the story was based on FBI materials. The article should accord-

ingly be regarded as a summary of a purportedly “official” govern-

ment report. See Mathis v. Philadelphia Newspapers, Inc., 455 F.

Supp. 406, 416 (E.D. Pa. 1978) (articles summarizing information

supplied by Philadelphia Police Department were accounts of govern-

mental reports and hence within Section 611, even though the articles

did not expressly identify the Department as the source of the informa-

tion); cf. R. Sack, supra note 6, § V1.3.7.5, at 325 (if the publication

does not inform the reader of the identity or nature of the government

proceeding, it probably is not a fair and accurate report).

49a

speaks only of “official” action or proceedings, without elabo-

rating on when a statement is made in an official capacity.

Comment d provides some support for locating the FBI docu-

ments concerning Medico within the scope of the privilege.

That comment states: “The filing of a report by an officer or

agency of the government is an action bringing a reporting of

the governmental report within the scope of the privilege.” In

the present case, the FBI included its information on Medico in

a report on the Philadelphia activities of the Mafia, and

forwarded it for inclusion in a report on nationwide organized

crime.

But another comment casts doubt on the applicability of the

fair report privilege to the FBI materials. Comment h indicates

that, while a report of an arrest or of the charge of crime falls

within the rrivilege, “statements made by the police or by the

complainant or other witnesses or by the prosecuting attorney

as to the facts of the case or the evidence expected to be given

are not yet part of [a] judicial proceeding or of the arrest itself

and are not privileged.” Because the FBI’s information con-

cerning Medico never led to an arrest or prosecution, the FBI

materials may be thought to stem from such an early stage of

official proceedings that the Section 611 privilege does not

attach.

Pennsylvania cases predating the publication of Restatement

(Second) also fail to resolve definitively whether summaries of

criminal investigatory files fall within the privilege. The two

cases most nearly on point, however, strongly support Time’s

defense. In Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586

(1963), the defendant newspaper had published three articles

based on the “Reuter Report,” a study, commissioned by

then-Governor of New York, Averell Harriman, of the activi-

ties and associations of individuals who had attended a meet-

ing of alleged organized crime figures.'* The Pennsylvania

Supreme Court held the newspaper’s publication protected,

announcing the fair report privilege in broad terms: “Upon the

18 — Interestingly, one of the alleged crime figures examined by the

Reuter Report is Russell Bufalino.

50a

theory that it is in the public interest that information be made

available as to what takes place in public affairs, a newspaper

has the privilege to report the acts of the executive or adminis-

trative officials of government.” /d. at 600, 187 A.2d at 588.

As in the present case, there is no indication that the Reuter

Report had led to the arrest or criminal prosecution of any

suspected wrongdoer. The Reuter Report, however, bore

stronger indicia of representing an “official” act than the FBI

materials here: it was filed with the Governor and then released

to the public, it evidently did not bear a legend indicating that

it reached only tentative conclusions, and it resulted from an

inquiry into the history and habits of organized crime figures

that occupied New York State officials for several months.

While Sciandra affords some basis for predicting that Pennsyl-

vania would extend the fair report privilege to the publication

challenged in this case, we doubt whether, standing alone,

Sciandra disposes of this issue."”

A decision by a federal district court construing Pennsylva-

nia law also supports application of the privilege to Time’s

publication. In Hanish v. Westinghouse Broadcasting Co., 487

F. Supp. 397 (E.D.Pa. 1980), the court held that the privilege

applied to a news report summarizing a civil complaint that

contained defamatory accusations and that had formed the

basis for a temporary restraining order.’ The court ap-

provingly quoted Justice Holmes’ statement in Cowley v.

Pulsifer, 137 Mass. 392 (1884), that “[i]f pleadings and other

19 Other Pennsylvania cases applying the fair report privilege cast little

light on the question here, inasmuch as they involved reports of clearly

official proceedings. See Binder v. Triangle Publications, Inc, , 442 Pa.

319, 275 A.2d 53 (1971) (account of proceedings in open court at

criminal trial); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167,

191 A.2d 662 (1963) (same).

20 Although the Court found the publication within the ambit of the

privilege, it denied defendant's motion for summary judgment because

it determined that plaintiff had raised a genuine issue of material fact

concerning whether the publication fairly and accurately summarized

the contents of the complaint.

Sla

documents can be published to the world by anyone who gets

access to them, no more effectual way of doing malicious

mischief with impunity could be devised than filing papers

containing false and scurrilous charges, and getting those

printed as news”; the district court concluded nonetheless that,

at least when some judicial action has been taken on a

complaint, the fair report privilege applies.”'

Assuming the court in Hanish correctly predicted Pennsylva-

nia law, we think that decision supports application of the

Section 611 privilege to the present case. FBI files seem at least

as “official” as the pleadings in civil cases. Although civil

complaints are instituted, for the most part, by private parties,

the FBI documents concerning Medico were compiled by

government agents acting in their official capacities. Moreovei,

the danger that a civil litigant will willfully insert defamatory

assertions in his complaint generally would appear at least as

great as the risk that a criminal investigatory agency will

knowingly include false or malicious statements in its files. If

Pennsylvania courts would grant the privilege to newspaper

accounts of civil complaints on which a court has acted ex

parte, we think it likely that they would grant the privilege to

republication of defamatory items from the FBI materials on

Medico.

21 Considerable controversy surrounds republication of defamations

contained in pleadings on which no official action has been taken.

Although Comment ¢ to Section 611 of the Restatement excludes such

pleadings from the scope of the privilege. Professor Eldredge writes

that “the weight of authority is contrary to the [Res/afement| rule, and

is that the report of pleadings filed in court which have not yet come

before a judicial officer and upon which no judicial action has been

taken comes within the privilege.” L. Eldredge, The Law of Defama-

tion § 79(b)(1), at 430 (1978). Compare Campbell vy. New York Eve-

ning Post, 245 N.Y. 320, 157 N.E. 153 (1927) (reports of preliminary

proceedings are privileged), and American Dist. Tel. Co. v. Brinks,

Inc., 380 F.2d 131, 133 (7th Cir. 1967) (same), with Cowley v. Pulsifer,

137 Mass. 392 (1884) (report of preliminary proceedings not privi-

leged).

52a

Three policies underlie the fair report privilege, and an

examination of them provides further guidance for our deci-

sion today. Initially, an agency theory was offered to rational-

ize a privilege of fair report: one who reports what happens in

a public, official proceeding acts as an agent for persons who

had a right to attend, and informs them of what they might

have seen for themselves.” The agency rationale, however,

cannot explain application of the privilege to proceedings or

reports not open to public inspection.”'

A theory of public supervision also informs the fair report

privilege. Justice Holmes, applying the privilege to accounts of

courtroom proceedings, gave the classic formulation of this

principle:

[The privilege is justified by] the security which publicity

gives for the proper administration of justice. . . . It is

desirable that the trial of causes should take place under

the public eye, not because the controversies of one

citizen with another are of public concern, but because it

is of the highest moment that those who administer justice

should always act under the sense of public responsibility

22 Thus in Curry v. Walter, 126 Eng. Rep. 1046 (C.P. 1796), perhaps

the earliest reported case recognizing the privilege, see Sowle, supra

note 11, at 478, Chief Justice Eyre instructed the jury that it is not

unlawful to publish “a true account of what took place in a court of

justice which is open to all the world.” The theory seems to be that

because a member of the public could have witnessed the defamation,

he is entitled to be informed of it. For an argument that the agency

rationale confuses elements that justify republication with those that

merely indicate when the privilege may exist, see Note, supra note 3, at

1116.

23 Courts still occasionally invoke the agency rationale, see Coleman v.

Newark Morning Ledger Co., 29 N.J. 357, 387, 149 A.2d 193, 209

(1959) (Weintraub, J., dissenting); Borg v. Boas, 231 F.2d 788, 794 (9th

Cir. 1956) (construing Idaho Law). See a/so Restatement (Second) of

Torts § 611, Comment d (1977) (“It is not clear whether the privilege

extends to a report of an official proceeding that is not public or

available to the public under the law.”)

—— ee

53a

and that every citizen should be able to satisfy himself

with his own eyes as to the mode in which a public duty is

performed.

Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). The supervisory

rationale has been invoked in the context of executive action as

well,”4

We believe the public supervision rationale applies to the

present case. As public inspection of courtroom proceedings

may further the just administration of the laws, public scrutiny

of the proceedings and records of criminal investigatory agen-

cies may often have the equally salutary effect of fostering

among those who enforce the laws “the sense of public respon-

sibility.” For example, exposing the content of agency records

may, in some cases, help ensure impartial enforcement of the

laws.

It is not necessary for us to decide, however, whether the

supervisory rationale is relevant to every republication of

documents found in FBI files. For any general supervisory

concern with respect to the FBI is heightened in the present

case by the public’s interest in examining the conduct of

individuals it elects to positions of civic trust. Elected officials

derive their authority from, and are answerable to, the public.

If the citizenry is effectively and responsibly to discharge its

obligation to monitor the conduct of its government, there can

be no penalty ‘or exposing to general view the possible

wrongdoing of government officials. Because the alleged defa-

mation of Medico occurred in an article analyzing the conduct

of former Congressman Flood, we believe it implicates this

aspect of the supervisory rationale. Moreover, even though

Time’s publication arguably may have tarnished the reputation

of Medico, a private individual,” as well as that of Representa-

24 ~—s- See Note, supra note 3, at 1108-09,

25 We need not decide whether Medico is a “public figure” for

constitutional purposes. Beginning with New York Times v. Sullivan,

376 U.S. 254, 279-80, 84S. Ct. 710, 725-26, 11 L.Ed. 2d 686 (1964),

the Supreme Court has required that “public officials” may not

54a

tive Flood, the public has a lively interest in considering the

relationships formed by elected officials.”

A third rationale for the fair report privilege rests, somewhat

tautologically, on the public’s interest in learning of important

matters.”’ While “mere curiosity in the private affairs of others

recover in actions for defamation unless they prove that the defendant

published false material, knowing of its falsity or with reckless disre-

gard of the truth. The Supreme Court later extended this same

protection to defendants in defamation suits brought by “public

figures,” Curtis Publishing Co. v. Butts, 388 U.S. 130, 87S. Ct. 1975,

18 L.Ed. 2d 1094 (1967), a class the Supreme Court delineated more

specifically on Gertz v. Robert Welch Publishing Co., 418 U.S. 323,

342-45, 351-52, 94S. Ct. 2997, 3008-09, 3012-13, 41 L.Ed, 2d 789

(1974). Where the plaintiff is a “private figure,” however, the First

Amendment forbids states to impose liability without fault, but

otherwise permits them to define for themselves the appropriate

standard of liability. /d. at 347, 94S. Ct. at 3010. Although Time

argued, in connection with its initial summary judgment motion, that

Medico was a public figure, Time withdrew this argument after the

Supreme Court indicated in Hutchinson v. Proxmire, 443 U.S. 111,

120 n.9, 99 S. Ct. 2675, 2680 n.9, 61 L.Ed. 2d 411 (1979), that the

“actual malice” issue generally should go to the jury.

See Sowle, supra note 22, at 485-86.

See Note, supra note 3, at 1111-16. The Pennsylvania Supreme

Court appeared to embrace this rationale in Sciandra v. Lynett, 409

Pa. 595, 600, 187 A.2d 586, 587, 588 (1963): “Upon the theory that it

is in the public interest that information be made available as to what

takes place in public affairs, a newspaper has the privilege to report the

acts of the executive or administrative officials of government.” See

also Barto v. Felix, 250 Pa. Super. 262, 267, 378 A.2d 927, 929-30

(1977).

Some jurisdictions rely on the informational rationale to extend the

privilege to accounts of the proceedings of public meetings of private,

nongovernmental organizations, as long as the meeting deals with

matters of concern to the public. See Barrows v. Bell, 73 Mass. (7

Gray) 301, 313 (1856); Pinn v. Lawson, 72 F.2d 742 (D.C, Cir, 1934)

(meeting of parish church board); Borg v. Boas, 231 F.2d 788, 794-95

(9th Cir. 1956) (meeting calling on judge to convene grand jury). The

British Defamation Act of 1952, 15 & 16 Geo. 6 & | Eliz. 2, c. 66, § 7,

extended the privilege to reports of “proceedings at any public meeting

55a

is of insufficient importance to warrant granting the privi-

lege,”** the present case does not involve such idle probing.

The Time article discussed two topics of legitimate public

interest. First, for the same reasons that support the supervi-

sory rationale, examination of the affairs of elected officials is

obviously a matter of legitimate public concern. In addition, as

various federal courts have already recognized, there is signifi-

cant public importance to reports on investigations of or-

ganized criminal activities,’ whether or not these implicate

government Officials.

Because the Time article focused on organized crime, we

think the informational rationale is especially relevant. The

district court in the case at hand commented on the difficulty

of gathering information pertaining to organized criminal

activity: “Due to the size, sophistication and secrecy of most

organized criminal endeavors, only the largest and most so-

phisticated intelligence-gathering entities can monitor them

effectively. In practice this task has been taken up primarily by

the Justice Department of the federal government and, in

particular, by the FBI.” Indeed, the documents that Time

summarized had been compiled by a government agency. In

light of the difficulty in obtaining independent corroboration

of FBI information, the press may often have to rely on

. . » bona fide and lawfully held for a lawful purpose and for the

furtherance or discussion of any matter of public concern.”

28 ~—s Note, supra note 3, at II11,

29 See Miller v. News Syndicate Co, , 445 F.2d 356 (2d Cir. 1971); Time,

Inc. v. Ragano, 427 F.2d 219 (Sth Cir. 1970); Wasserman v. Time, Inc.,

424 F.2d 920 (D.C. Cir.), cert. denied, 398 U.S. 940, 90S. Ct. 1844, 26

L.Ed. 2d 273 (1970). During the short-lived regime of Rosenbloom vy.

Metromedia, 403 U.S. 29, 91S. Ct. 1811, 29 L.Ed. 2d 296 (1971),

which applied the New York Times standard to defamation actions

arising out of reports on matters of public or general interest, courts

frequently applied the “actual malice” requirement to actions based on

accounts of organized criminal activities. See Taskett v. Kine Broad-

casting, 86 Wash. 2d 439, 546 P2d 81, 100 (1976) (Horowitz, J.,

dissenting).

S6a

materials the government acquires if it is to report on or-

ganized crime at all. We believe Time’s publication of FBI

materials mentioning Medico served a legitimate public interest

in learning about organized crime.

Care must be taken, of course, to ensure that the supervisory

and informational rationales not expand into justifications for

reporting any defamatory matter maintained in any govern-

ment file. Personal interests in privacy are not to be taken

lightly, and are not to be overborne by mere invocation of a

public need to know.” But we believe that the public interest is

involved when, as here, information compiled by an enforce-

ment agency may help shed light on a Congressman’s alleged

criminal or unethical behavior.

IV.

Constitutional considerations also help resolve the present

dispute. Although the Supreme Court has never explicitly

recognized a constitutional privilege of fair report, several of

its recent decisions point toward that result. While we need not

decide today whether the First Amendment requires a privilege

for the press to report on official acts and proceedings regard-

less of whether they contain defamatory information, we find

that analysis of the constitutional issues reinforces our predic-

tion that Pennsylvania would, as a matter of common law,

apply the fair report privilege to Time’s publication about

Medico.

Two cases from outside the field of defamation reflect the

Supreme Court’s recognition of the First Amendment value of

30s The excesses of the McCarthy era, for example, prompted some

commentators to point out the reputational injury the republication of

official defamation can cause, and to advocate restricting the fair

report privilege. See Pedrick, Senator McCarthy and the Law of Libel:

A Study of Two Campaign Speeches, 48 Nw. U. L. Rev. 135 (1953); 13

Rutgers L. Rev. 723, 727 (1959). See also Coleman v. Newark Morning

Ledger Co., 29 N.J. 357, 149 A.2d 193 (1959) (serviceman previously

unknown to public defamed by Senator McCarthy’s summary of secret

Congressional hearings; newspaper account held privileged.)

57a

reports of official proceedings. In Cox Broadcasting v. Cohn,

420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Court

ruled that the First Amendment precludes a cause of action for

invasion of privacy brought about by publication of the name

of a deceased rape victim. The Court noted: “Public records by

their very nature are of interest to those concerned with the

administration of government, and a public benefit is per-

formed by the reporting of the true contents of the records by

the media.” /d. at 495, 95 S.Ct. at 1046. In addition to these

comments, which emphasize the informational rationale for

the fair report privilege, the Court stressed the supervisory

duties of the public: “The citizenry is the final judge of the

proper conduct of public business. . . . With respect to judi-

cial proceedings in particular, the function of the press serves

. . to bring to bear the beneficial effect of public scrutiny

upon the administration of justice.” /d. at 495, 492, 95 S.Ct. at

1046, 1044.

While Cox Broadcasting arose from a news report based on

judicial records open to public inspection, the Court’s commit-

ment to dissemination of information of interest and value to

the public seems just as apposite when, as here, the press

reports on materials not open for inspection. Moreover, the

Court in Landmark Communications, Inc. v. Virginia, 435

U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), extended the

protective mantle of the First Amendment to a report of a

proceeding closed to the public. The Court there held that a

state may not impose criminal sanctions on those who publish

information regarding proceedings before a state judicial re-

view commission, even when the state constitution and laws

declare the proceedings confidential. The Court again stressed

the need for public knowledge of the affairs of government:

“*A major purpose of [the First] Amendment was to protect

the free discussion of governmental affairs.’ . . . Neither the

Commonwealth’s interest in protecting the reputation of its

judges, nor its interest in maintaining the institutional integrity

of its courts is sufficient to justify the subsequent punishment

of speech at issue here.” /d. at 838, 841, 98 S.Ct. at 1541, 1542

(quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434,

1436, 16 L.Ed.2d 484 (1966)).

58a

Landmark Communications, like Cox Broadcasting, does

not strictiv control the issue before us—for Landmark arose in

the context of criminal sanctions,’' rather than a defamation

suit, and plaintiff in Landmark was a public official.” But in

both Cox Brouwdcasting and Landmark Communications, the

Supreme Court articulated the First Amendment value of

reports that inform the public of the affairs of government and

assist the citizenry in its supervisory duties. In Cox Broadcast-

ing these values applied in the context of a damage action

instituted by a private figure, and in Landmark Communica-

tions they could not be overcome by the confidentiality of the

materials reported on.’’ Since we have found that the publica-

tion at issue here implicates these informational and supervi-

sory interests, Cox and Landmark provide a constitutional

basis for applying a fair report privilege to a controversy

which, like the present one, arises from a private figure’s

damage action for publication of reports not available to the

public.

Closer to the facts in our case is Time, Inc. v. Pape, 401

U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), which some

31 At least one commentator has remarked that “[t}he fact that the

defendant in Landmark suffered a criminal sanction, as opposed to a

civil liability for defamation, should have no bearing on the relevance

to defamation law of the Court's reasoning.” Sowle supra note 22, at

500. As the Supreme Court observed in New York Times v. Sullivan,

376 U.S. 254, 277, 84S. Ct. 710, 724, 11 L.Ed. 2d 686 (1964), “the

fear of damages awards . . . may be markedly more inhibiting than

the fear of prosecution under a criminal statute.”

32 Some language in Landmark suggests that the Court may have

limited its reasoning to public officials; thus, the Court observed: “Our

prior cases have firmly established . . . that injury to official reputa-

tion is an insufficient reason ‘for repressing speech that would

otherwise be free.” ” 435 U.S. at 841-42, 98 S. Ct. at 1542-43 (quoting

New York Times v. Sullivan, 376 U.S. 254, 272-73, 84S. Ct. 710, 11

L.Ed. 2d 686 (1964)).

33, Cf. New York Times Co. v. United States, 403 U.S. 713, 91S. Ct.

2140, 29 L.Ed. 2d 822 (1971) (classified status of Defense Department

study of Viet Nam War does not justify prior restraint of newspaper

publication).

59a

commentators have interpreted as elevating the fair report

privilege into a constitutional requirement. Pape arose from a

Time magazine article that quoted excerpts from a Report of

the United States Commission on Civil Rights. One section of

the Report, dealing with police brutality, listed in detail allega-

tions against Pape and other Chicago police officers contained

in a civil complaint; Time quoted the allegations without citing

the complaint, arguably making it appear that the allegations

were factual findings of the Commission.

The precise issue presented to the Supreme Court was

whether there was sufficient evidence for a jury to conclude

that Time magazine, in omitting to mention that the charges of

brutality were allegations of a complainant rather than find-

ings of the Commission, had published material it knew to be

false, or had acted in reckless disregard of the truth.”’ The

Court observed that it is often possible to separate the question

of the truth of the publication from the question of whether

the publisher had an adequate basis for believing his publica-

tion true. 401 U.S. at 285, 91 S.Ct. at 637. But not all cases are

susceptible to this analysis: “A vast amount of what is

published in the daily and periodical press purports to be

descriptive of what somebody said rather than of what any-

body did. Indeed, perhaps the largest share of news concerning

the doings of government appears in the form of accounts of

reports, speeches, press conferences, and the like. The question

of the ‘truth’ of such an indirect newspaper report presents

rather complicated problems.” /d. at 285-86, 91 S.Ct. at 637

(emphasis in original). After analyzing the Time article in light

of the Commission Report, the Court concluded that Time had

34 See Eaton, The American Law of Defamation Through Gertz v.

Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va. L. Rev.

1349, 1362 n.46 (1976); Comment, The Expanding Constitutional

Protection for the News Media from Liability for Defamation; Pre-

dictability and the New Synthesis, 70 Mich. L. Rev. 1547, 1555 (1972);

W. Prosser, supra note 3, at 832.

35 Pape did not challenge the findings of the district court that he was a

“public official.” See 401 U.S. at 284, 91S. Ct. at 636.

60a

not engaged in a falsification sufficient to warrant a jury

finding of actual malice.

While the fair report privilege was not at issue in Pape,” the

Court’s explicit recognition of the sensitive First Amendment

problems that arise when the press publishes accounts of

government reports and activities has not been lost on other

federal courts. At least one court of appeals, citing Pape, has

generalized this concern to create a constitutional privilege

whenever the press republishes defamatory comments while

reporting on newsworthy events. In Edwards v. National

Audubon Society, Inc., 556 F.2d 113, 120 (2d Cir.), cert.

denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977),

the Second Circuit stated:

When a responsible, prominent organization . . . makes

serious charges against a public figure, the First Amend-

ment protects the accurate and disinterested reporting of

those charges, regardless of the reporter’s private views

regarding their validity. . . . What is newsworthy about

such accusations is that they were made. . . . The public

interest in being fully informed about controversies that

often rage around sensitive issues demands that the press

be afforded the freedom to report such charges without

assuming responsibility for them.

Although this Court, in dicta, has declined to follow Edwards,

see Dickey v. CBS, Inc., 583 F.2d 1221, 1225-26 (3d Cir. 1980),

other federal courts have, as a matter of federal law, expressed

36s The way a plaintiff frames the allegations of defamation determines

what factual allegations a truth defense requires. See W. Prosser, supra

note 3, at 798. Pape did not allege that the “gist” or “sting” of the

Time article was that he was guilty of brutality, but rather that Time

defamed him by falsely asserting that the Commission charged that

Pape was guilty of brutality. The case thus did not implicate the fair

report privilege, since the object of the privilege—to put in issue the

truth of the report that a third party defamed the plaintiff, rather than

the truth of the underlying defamation—had been attained by viriue of

how Pape framed his case. For a more thorough discussion, see Sowle,

supra note 22, at 501-08.

6la

reluctance to hold the press responsible for publication of

defamatory statements originally uttered by others.’’ More-

over, the concerns underlying Pape and Edwards are height-

ened when the source of newsworthy defamation is a

government official or report.”*

We are careful to point out that we do not decide at this time

that the First Amendment immunizes a newspaper’s republica-

tion of a defamation arising in connection with a matter of

public interest, and originally authored by a government

source. But we believe that the solicitude that both the Su-

preme Court and other federal tribunals have expressed for the

press in such circumstances might well influence the Pennsylva-

nia Supreme Court’s application of its common law privilege

of fair report.’’ The trend of federal case law strengthens our

37 ~—- See Medina v. Time, Inc., 439 F.2d 1129 (ist Cir. 1971); Oliver v.

Village Voice, Inc., 417 F. Supp. 352, 238 (S.D.N.Y. 1976); Novel v.

Garrison, 338 F. Supp. 977, 982-83 (N.D. Ill. 1971).

38 The news report at issue in Dickey involved a defamation originally

uttered by a public official, but one speaking in a personal rather than

in an official capacity. See 583 F.2d at 1222-23. Plaintiff in Dickey

admitted that he was a public figure and could prevail on his defama-

tion claim only if he satisfied the New York Times standard of “actual

malice,” see note 25 supra. The Third Circuit affirmed the district

court’s holding that plaintiff had failed to satisfy his burden of proof

on this issue. /d. at 1227-29. The court’s discussion of Edwards v.

National Audubon Society, Inc., was thus irrelevant to its decision.

39 Since the Supreme Court's decision in New York Times v. Sullivan,

376 U.S. 254, 84S. Ct. 710, 11 L.Ed. 2d 680 (1964), Pennsylvania

cases frequently have taken account of constitutional principles while

fashioning common law rules of defamation law. The result is that “no

rigid line of demarcation may be maintained between state law rules

and constitutiona! norms, for both are intermixed in the Pennsylvania

precedents.” Pierce v. Capital Cities Communications, Inc., 576 F.2d

495, 502 (3d Cir.), cert. denied, 439 U.S. 861, 99 S. Ct. 181, 58 L.Ed.

2d 170 (1978). For an illustration, see Matus v. Triangle Publications,

Inc., 445 Pa. 384, 395, 286 A.2d 357, 362-63 (1971), where the

Pennsylvania Supreme Court, following the decision on Rosenbloom

v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811, 29 L.Ed. 2d 296

(1971), engrafted onto Pennsylvania law the rule that the New York

62a

belief that the Pennsylvania Court, if confronted with the

question, would find the Time article that Medico challenges

within the ambit of the privilege.

Once the libel defendant establishes the existence of a “privi-

leged occasion” for the publication of a defamatory article, the

burden returns to the plaintiff to prove that the defendant

abused its privilege. Sciandra v. Lynett, 409 Pa. 595, 601, 187

A.2d 586, 589 (1963). Pennsylvania recognizes two forms of

“abuse”: the account of an official report may fail to be fair

and accurate,” as when the publisher overly embellishes the

account, Binder v. Triangle Publications, Inc., 442 Pa. 319,

275 A.2d 53, 56 (1971); Sciandra v. Lynett, 409 Pa. at 600, 187

A.2d at 589; or the defamatory material may be published for

Times knowing or reckless falsity standard applies in a civil libel action

brought by a private individual for defamatory falsehoods uttered in a

news broadcast about the individual’s involvement in an event of

public or general interest.

40 Placement on the plaintiff of the burden of demonstrating that a

privileged report was not fair and accurate traditionally distinguished

the fair report privilege from the truth defense, in which defendant

bore the burden of proving truth, see Corabi v. Curtis Publishing Co.,

441 Pa. 432, 449-50, 273 A.2d 898, 908-09 (1971). After Gertz v.

Robert Welch, Inc., 418 U.S. 323, 94S. Ct. 2997, 41 L.Ed.2d 789

(1974), it is doubtful that a state can place the burden of proving truth

on the defendant. Gertz held that a plaintiff in a defamation action

must be required to demonstrate “fault” on the part of defendant, id.

at 347, 94S. Ct. at 3010, and rejected Justice White’s suggestion,

offered in dissent, that a publisher may be required to prove the truth

of a defamatory statement concerning a private individual, id. at 347

n.10, 94 S.Ct. at 3010 n.10. We have earlier questioned whether

Pennsylvania’s placement of the burden of proving truth on the

defendant survives Gertz, see Steaks Unlimited, Inc. v. Deaner, 623

F.2d 264, 274 n.49 (3d Cir. 1980), and at least one member of the

Pennsylvania Supreme Court has expressed similar reservations, see

Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441, 447 (1975) (Roberts, J.,

concurring). But see Eaton, supra note 33, at 1381-86, 1429 (Gertz

tolerates common law rule of presuming falsity of defamatory publica-

tion, and placing on defendant burden of proving truth).

63a

the sole purpose of causing harm to the person defamed, id.

Inasmuch as Medico does not allege that Time published its

article for the purpose of harming him, the sole issue with

respect to abuse of privilege is whether the district court erred

in concluding that there was no genuine question whether

Time’s publication fairly and accurately summarized the FBI

materials concerning Medico.

We agree with the district court that nothing in the record

suggests that the Time article unfairly or inaccurately reported

on the FBI materials. Medico asserts that Time’s failure to

mention the legend on the FBI report on the Philadelphia

Branch of La Cosa Nostra renders its story unfair. No similar

legend, however, appears on the FBI's personal file card on

Medico, which is an independent source of the information

reported. Moreover, nothing in the Time article expresses a

“recommendation” or “conclusion” on the part of the FBI

concerning Medico’s participation in Mafia activities. The

article simply says that FBI “agents tape-recorded Bufalino’s

description of Philip as a capo (chief) in his Mafia family.”

Medico also insists that, because the FBI files identify the

“informant” only by a code name, it is impossible to ascertain

whether Time’s summary was accurate. But the uncontradicted

affidavits of Breen and Collins establish that the code names

refer to electronic listening devices that the FBI planted in the

Philadelphia area. Time has accurately portrayed the FBI

records as indicating that Medico has been identified as part of

the Bufalino crime family.

Vi.

Medico further contends that Time can avail itself of the fair

report privilege only if it actually based its article on the FBI

materials; if the report reflects the contents of the official

materials merely by coincidence, the privilege does not attach.

Medico maintains there is a genuine issue of fact whether Time

employees worked with the FBI materials in preparing the

article.

Pennsylvania law squarely contradicts this argument. In

Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53

64a

(1971), a newspaper printed an allegedly libelous article that

purported to summarize testimony at a criminal trial. The

reporter who wrote the article had not attended the trial,

however, but had based his story on information supplied by

persons who had attended. The Pennsylvania Supreme Court

held the story was nonetheless privileged. It said: “How a

reporter gathers his information concerning a judicial proceed-

ing is immaterial provided his story is a fair and substantially

accurate portrayal of the events in question.” /d. at 327, 275

A.2d at 58. In the present case, then, how Time magazine

obtained its knowledge of the FBI materials is irrelevant under

the law of Pennsylvania.*' The article is privileged as a fair and

accurate summary of the FBI materials.

Vil.

We conclude that Time’s publication of an allegedly defama-

tory article concerning Philip Medico falls within the scope of

the Pennsylvania common law privilege of fair report, and that

Medico has failed to establish a genuine issue of fact concern-

ing a possible abuse of the privilege. We therefore find it

unnecessary to address Time’s alternative argument for affirm-

ance: that the affidavits it submitted establish the substantial

41 Medico cites Kilian v. Doubleday & Co., 367 Pa. 117, 79 A.2d 657

(1951), as establishing that, in order to be privileged as true or as a fair

report, a defamatory statement must be based on the personal observa-

tions of the speaker. Medico’s reliance is misplaced. In Kilian, the

author had written his story in the first person; although he based his

portrayal of events on the reports of other people, he wrote the story

as though he had witnessed the events himself. Thus, his story carried

“the verisimilitude naturally to be expected from the author's state-

ment that he himself witnessed such occurrences, as distinguished from

assertions made on the basis of hearsay.” Under these circumstances,

the Pennsylvania Supreme Court indicated that the defendant could

prevail on his truth defense only by establishing the events related. By

contrast, the authors of the Time article made no claim to have heard

the FBI recordings they reported. Kilian does not suggest that a

defense of truth or privilege requires that the story be based on

personal observations of the author, when the account

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