# Petition — Associated Press v. Bufalino > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0628%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 462 U.S. 1111 ## Text 0 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 ed i PPC MOPOR MED ccs cccrcccoscccvcsscces iv Ee Lu ue dds wpe eassseceevencccecess l I l ee Gy G id vakcecesrboccescccess 2 CONSTITUTIONAL AND STATUTORY SPE MET WUPEW ED 6 ccc ccccsccccccccccees 2 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)...... RE a | er erie ee ee ree Se PS DG dkcue swan Peesae geek cee nics Sees Es ES POE OB Bae cn kvyskeanevaanseeu.es PAGE 3,1 tO NOW Nm IN THE Supreme Court of the United States OCTOBER TERM, 1982 No. 82- ee 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.” 2 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. . 4 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). 5 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 6 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. 8 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 10 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 12 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- 13 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 14 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. 15 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). 16 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. 17 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, ee 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. 2a 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, 3a 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 4a 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). Sa 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: 6a 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- 7a 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. 8a 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. 9a 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 accompany [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0628%3A1. Public record. Not legal advice.