# Opposition Brief — Sellers v. Time, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0104%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 400 U.S. 830 ## Text LIBRARY | PREME COURT, U. S. IN THE Supreme Court of the United States: October Term, 1970. No. 437. % . | WILLIAM W. SELLERS, THE SELLERS COMPANY, INC. and SELLERS SERVICE, INC., si a PRO cara AO Petitioners, wns ae ¥ vy, ¢ TIME, INC., ae Respondent. | BRIEF IN OPPOSITION TO PETITION . FOR A WRIT OF CERTIORARI. Pur H. Strustnc - - © Harorp R. Meprna Jr. Wiser H. Haines Jr. ~~ Cravatu, Swarne & Moore Pepper, Hamitton & ; One Chase Manhattan Plaza. ScHEETz New York, N. Y. 10005 ; 2001 Fidelity Building Philadelphia, Pa. 19109 . Attorneys for Respondent. International, 711 So. 0th te Phila., Pa. 19143—Tel. SA 7-8711 Ares Code 215 INDEX. : ; Page CONNIE TIRE | oa ee Gia chat ee aa tag pate ] Or ESTIONS yp Be RE ee Se enor Par Rn TS oy! 2 ’ STATEMENT OF THE ST See as hae fee a aa triah 3 ARGUMENT 2.55 05.5.5 Per rerrTr ye ate eas : Pree OTe Tere 8 A. The Coles of Appeals Decision Correctly Held. That. _ the Article Was Not Reasonably Capable of ‘a De- ~ damatory Meaning Undér Pennsylvania Law ...... 8 (1) The Third Circuit . Tested the Article's Capacity for Defamatory Meaning gp Ac- cordance, With Pennsylvania RM Wis ass 8 (2) The Third Circuit Properly Affirmed on a * © Common Law Ground .....-.. Mis dees ; 12 . (3) Petitioners’ Alternative Invasion of Privacy: ' Theory of Recovery Poa Ren et eres 13. B. The District Court Decision Is 5 Cortes in* Holding That the Time Article Was Constitutionally Privileged ...° 17 (1) ‘The First Amendment Protection Applies to. Publications of Matters of Public Interest 18 (2) Respondent Is Entitled to "Summary Judg- SP ELSIE ere UEP eT eee rere. Fe me 21 C. The District Court Decision Is Correct | in Holding T hat - the Time Article W as ‘Priv ileged as a Fair Report: of Judicial Proceedings Seabee a awed errr ery rey 23 CoNCLUSION ......... epee pe aire yer ere ere roree 2B APPENDIX A—Opinion of the Court of Appeals for the Fifth ~ Circuit in Bon Air Hotel, Inc. v. ‘Time, Ine. [ No. 27 490, May 6, _— ——-. re ae deaeee Cee Pre TTC ree “A-1 ee, TABLE OF CASES. eae A - es Page Aquino v. Bulletin Company, 190 Pa. Super. 528, 154... 2d 422. (1959) ses ; Alma Motor Co. é. Timken-Detroit Axle*Co., 329 U. S. 129 ; Fe aN Ae OOS eee eon 8 alee S Beckley New spapers. Corp. v. Haiks, 889 LS. 81 °(1967) .. 18 Birl v. Philadelphia Kleetric Company; 402 Pa. 297, 167 A. 2d A REO ens ia sin asad ins er ee ree a ee 11 Bogash y. Elkins, 405 Pa. 437, 176.A. 2€°677 (1902) ...... 9 Bon “Air Hotel, Inc. v. Time, Ine., No. 27,490 (Sth Cir, May . 0, 1970) {uinreported; opinion printed in Appendix A hereto), affirming, 205 F, Supp. 704 ($. D. Ga. 1969). .19, 23 Boyer +. Pitt Publishing, Company, 324 Pa. 154, 188 .,203 | ERIE? cai was Cyan ree Thi cas RK Veena ae oue REL Aes OO Capital Tiaction Co. v. Hof, 174 U. S. 1 (1898) aN = ¥ Clark v. Allen, 415 Pa. 484, 204 A. 2d 42 (1964) .......: 9,10 Cresson vy. North American Co., 280 Pa. 373, ail A. +495 (i eG ess) oun wn basxie ss 4 ‘Sys pene 216,24 Curtis Publishing. Co. v. Butts, 388 LE. S. 130 (1967 were 18, 19 Friday v. Official Detective Stories, Inc., 233. F. Sapp. 1021 COD OWS.) eee eee eee aaeanes oo. Gt ee Garrison v. Louisiana, 379 U.S: 64 (1964). 0.0.22... a 386, 19; 22 Grayson vy. Curtis Publishing Co., 72 Wash. 999, 436 P. 2d 756 (1967) Ee PENCE OEY eer eecacede. “ae. Greenbelt Cooperative Publishing Associdtion, Inc. v. Bresler, OFS. 4% WSar CIO) 5 esas APP ye re a eye ‘18 | Grove Vv. Dun & Bradstreet, Inc., 308 F. Supp. 1068 (W. BD. nes a Ar ana CA OR pak Le me 19 Helvering v. Gowran, 302 U. $2238 (1937) ...........008. 13 Henry vy. Collins, 380 U.S. 356 (1905) 2.0.26. oe yey. Hormel vy. Helyering, 312 U, S. $52 (1941) ....... Sek renee a5 235 + | tai TABLE OF CASES (Continued)... ‘ , Page Kernick v, Dafdanell Press, 428 Pa. 288, 236 .\. 2d 191 (19¢ 7) 9,10 ‘LindA* Coat and Supply Co., Th ré, 255 F.2d 655 3d" Cir. We as Sen Were So ee peeee ARG © ‘Linn v; United Plant Guard Workers, gas US, 5. : . . McAndrew v. Seranton Repub. Pub. Co., 364 Pa. 504, 72 A. 2d EE oot) aa saa ae Pe STR ae gt ANOS 9 Mengel v. Reading Eagle Co. . 241 Pa. 367,88 A. 600 ( 1913 Wis ae. New York Times Co. vy. Sullivan, 376 U. S. 234 (1964) . Teg 26,80 17/48, 19/21, 22 Pickering v. Board of Education, 391 (U.S. 563° (1908) 6. 18, 19 we ea st ~ ~ = ~ — . ae ~ Rosenberg v. Fleuti,'374 U.S: 449 (1903) .... saeyectauns ., 90 Rosenblatt_y, Baer,.a83.U. $..75 (1966) V2... .. re 18, 19 Resenbloom v. Metromedia, Inc., 415 F.2d 892 (1969), cert. granted, 397. U."S, 904 Sane 1 Ena ye ER On Ee Oar . “19 St. Amant v. addict, 390 U.S. 727 §1908 ) races ee es ix 22 Sarkees y.. Warner-West re 349. Pa. 305, v/ A. 2d 344 20 ee oe 1 URE R ROS aS ee eee 29,1001] _ Sciandra vy. | ynett, 409 Pa. - 698, 187 A. 2d 586 (19063) ‘ OG 2k. 24 Shafer. v. Reo Motors, Inc., 205 If. 2d 685° (3d Cir. ae ea 14 Time, «Ine. v. Hill, 385 U.S. 374 (A967) 0. ,18; 19, 22 Time, Inc: v. MeLaney, 406 F. 2d 565 (5th Cir.), cert. denied, | VU. S. Ser ( .. Rae Ete ee? 19, 23 tnited Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc. 404 F.2d 706 (9th Cir, 1908), cert. dented, DNS 9 I ce i e wd a AB ens - ya Virgini: an Railway Company v. Mullens, 271 U.S. 220 (1926) 14 Vitex Manufacturing Co. v.G Hovernment of Vi irgin Islands, 351 I, 2d°313 (3d Cir. 1965) Pure ee Nana. 3 ea beets oe eo Wachs v. Ramp Consulting Services, Iné., 28 Do & C. 2d 201 roy 3 P. Monte. Co. 0 Geena eee : Be 3p ae ee 24 Wi Eavionten Post ae Keogh, a0> fF. 2d 965 iD Cc tr, = 1966), cert. Venied- 385 1. S. 1011 (9007) .2......... 23 ~ Wasserman v. Time, Inc., 424 F. oA 920 (D. ©. Cir. 1970) 22.19 é ° i N fo e a é . . UNITED STATES CONSTITUTION. . - Page farst “Amendment he ocean Naa a ee PE eee 17, 187 19, 22 Seventh Wmendment 2... 0... Heres beac ie ee ere 12 es ; > o _ OTHER AUTHORITIES. ee ee ee . Page eco ss Restatement of Torts, $ OFF (1938) fi POe eS ee NO ee Se ee 9 Sank 6 a e ; “hes ° Supreme Court ¢f the United States : ‘> zt ae “1% Ocropen Term, 1970. ° . > j na . *: : Pot Rig aa: : ° * WILLIAM W. SELLERS, THE SELLERS COMPANY, “INC. axp SELLERS “SERVICE, INC, Petitioners, go:* U ; TIME, INC., x Respondent, ER red Site meses ; % \ * ler _ BRIEF -IN OPPOSITION TO. PETITION - \FOR A. WRIT OF CERTIORARI. ae. - OPINIONS BELOW. . Petitioners seekoa writ of 8certiorari to™the United States Court of ‘Appeals for the. Third’ Cireuit: which: Mareh 20, 1970 affirmed ihe judement of the United States Disttict Court for the Hastern District of Pennsylvania dismissing the complaint in a libel Retion based on’ an arti¢le published in Time magazine. The Third) Cireuit, . 3 . . . ~ oh URS, : °. “e . peta ma Brick in Opposition to Petition ; oes agreeing with the District Conrt, held. that the ‘Rime article, Was not capable ‘of a libe tope theaning under the Pennsyl- ie a ee common law of libel.” The Third Cireuit’s opinion Se ee Appendix 10 of Petition) is reported at 423 1. Yd SS7. ae The District’ Court addition: ly granted respondent’ . motion Tor summinary judgement on the grounds that the TAne article was priv Heged asa fair report of judiet: il pro- cood ings under the | onusylvania common lawtof dibel and ' Was also constitutionally privileged as a matter of law under thet principles of New. York Times Co. v. Sullivan, 30h U.S. 24 (1964). “The ( ‘aut of Appe ‘als di not reac ‘I eos these pr ivilege questions, Sey The Distfict Court's opinion ¢ Appendix I of Pe tion) is s reported at 299 FL Supp. o82 t ; QUESTIONS: PRESENTED. oMever a | Whether the Third © iPeuit correctly held «that the ae article was not peas sonatbty capable of a defamatory meaning, In accordance with’ established principles: of the Peitnsylyvania common haw of ibe I. j « , AS an, tame F it not, whether the District Court eorrectly held Ve tigat ‘the Timé article: Wats privileged as a fair report of as Stee. oes lal progedite® undefgthe Pennsylvanta common law * hbely and was constitutionally privileged, tmder Neve. ; ee Tities Co. r. Sullivan, 376 Ue. 254 (4964) and re- lated decisions of this Court. «. Brief in Opposition to Petition ‘ tous oom ‘STATEMENT OF THE CASE.. This is 4 libel action! based on an article entitled “Duffer’s Dilemma?” hich appeared in the Law section of the May 6, 1966 issie of Time. magazine. > The article reported on a personal injury action instituted-in the Dis trict Court for the Eastern District of Pennsylvania against Wilhiani Sellers and the Sellers Companies “by a business acquaintance, James Walsh, whom ‘Selle rs had blinded in a. freak golfing ace ‘ident. - The developme ut in the case that prompted Time? s report was —Distiict Judge «Luongo’s denial of Sellers’. motion for summary: judemeit in which “plaintiffs asserted: that "W alsh had assumed the risk of: Sellers’ “impossible? * shot which had-been hit laterally | and to the rear of the tee. — - = The decision tha{ the defénse of assgumption of risk was inapplic: tbte because Walsh was hit hy a wild shot while in a place of supposedly perfect safety wats reported and summarized in, Sections 1-and.2 of the April 19, 1966 issue of United States Law Ww eck, 34 U.S. L. W. LINGO, 2 2: 263, —where it was seen by the editor of the Law séetion of Ti iImes- magazine (App. 123-24) .2 -Time’s Philadelphia vorrespond- 1. The. petition erroneously desetibes’ the 2étion’ as “being “for libel and i invasion of privacy ‘Ce. g.. p23). The ‘complaint. sowhds: solely in libel: it contams no language which, even remotely suggests a privacy cause of action: Petitigners tive proceeded excluxiv on a libel theory, both opinions | below describing and treatimg the action as for ‘libel only. ° Individual petitioner Sellers first @ontended “that his cause of action may also be sygtained under Pennsyi- vania-common law principle of invasion of agree vey tehearng by the ‘Third Cireuit, tiled April 3, 1970. fhe petition for rehettireagompl: titted that the: Court ol Appei a ‘completely over-_. ‘looked: and failed even to discuss-tiie fhyasion gf priv: CV we a it ‘it did not exist,” based.on an-oblique reference to conimon Tart, inva- ‘sion is privacy in a footnote in petitioners’ reply brief. References to the Apperidix containing: the design: ited por- tions: of the record on appeal m the Third Circuit are cited herein : as “ App.” ea | te etition tor * a] ¢ > . - > Brief in Opposition to Petition.” o - e b i a deseribed by. the Court as an “impossible” dealt with a matter of public interest. The ¢ article, which is. | | written in a lively prose style, which petitione rs charac * terized. as ‘flippant’? and “smart alecky’’, it is obviously not.def famatory. ne ‘i vo | Nonethe loxs petitione rs filed-a libel setion on May 26, 1966 cliiming that the article WaeNtalse and defamatory. Sellers contended .the article libeled him: because (1) i deseribed him as a ‘*duffer”? and: said that Sellers’ eame Was running true ‘te form’ > ofvthe day Ww alsh was ‘struc ‘k ° with the bal’ ;,(2) it stated thitt he ‘“Odaysevolf for busimess 9 rather than plewsure’ Cc = ane (3) it stated’ that. ‘At the third tee, iis mind on a potential deal , Sellers hit the ball so. awkwardly that. it flew to the rear and struck oe of. his partiers, James Walsh’... Asa result, Walsh was blinded in his left eye.’ The libelous mreaning ‘Sellers aseribed to these staie- ments was that they portrayed him.as an overly material- istic oer crassa man, for whom business suecess overrides all. concern for others, as well i as a stupid, awkward and in- competent person. In support of their complaint petitioners sindértosk OX- tensive pretrial discove Ty, Inc lnding (1) reeeiving answers to two sets of interrogatories which set forth in detail the editorial. process of respondent; (2) examining the entire —editérial reference file of. respondent relating to the article; and (3) .deposing at.length cach of the five individuals who e, participate ‘din the preparation of the articles On August 2, 1968 Time filed a motion to dismfsss the complaint on the eround the . article was not capable: of. defamatory meaning as‘a matter of law,.and for summary judgment on ‘the grounds the, article was ‘constitutionally. priv Beare under New York Times and privileged asa fair shot, ¢learly” - and “was working while golfing” at ae Q . e. 6 pete Lave Yi ‘ae § teteee ts tee | — 7) t Opyosilion’ to Petition ‘ report of jtidieial preceedings Gudon the. Pennsylvania common law of. libel.. he four members. of Time gnaga- Zine’s New York editorial ‘staff who “participa ed) in the Sufirmiod’ their bodiet i in the truth of the article, both in the (epositions taken ‘by petitioners “and in affidavits filed in’ support of respondent's motion. preparation of the artivlé Petitioners submitted no opposing aflidavits. On May 12, f969, after completion of all rele vant. dis- covery; District’ Judge Kraft ¢ratited respondent’s motion. He based his alecision on. three grounds : First, .that the = article was’ privileged under the common ‘daw of Perinsyl- vania as, a fair report , of judicial prec vedings. Second, . that the artide Was” constitutionally pri ileged beeatse it “reported én a judici al decision of public sas ae peti- tioners failed Yo offer evidence 7) i any: gehuine issue of. J ‘factual malice’? In ihe view of Judge Kraft, “The, sup- \ porting affidavits attached to the motign together with the \ depositions and answers to. interrogatories, manifestly demonstrate the complete Jack of any knowledge of the: ‘alsity of the article or reckless ‘disregard of the truth on the part of Time’s employees. * 299 FL Supp at 386. Third, that the article was not capable ot the det ‘amatory meanings ascribed to it by. petitioners. Ss ey ae . “Additionally, Judge Kraft found. that: the portions of the article complaine «lof by petitioners, as set forth above, avere “stibstantially accurate: * 299 F, Supp. ut 586, This | “finding is material with respect to petitioner: Wifliam Sel lers’ new, theory, not raised be low’, that the article invaded, his common ‘law rightof privacy. ~~. (i March : 20,1970 the Court of Neale for the. Third . Circuit affirmed the District {‘ourt’s ‘judgment dismissing the complaint, on the ¢ eround that the .article, fairly and - reasonably’ construed, Was not ¢: rapadle of the Iibelous mean-. -ings ascribed to it? by petitioners." Ace ordingly, the Court. . ; pr ’ \ \ i ~ 5 oe - 5 rep ae | oe i * een ig | Brief i Opinion to. Petition’ Pe issues, * — ~~ ° g fe é s ? P - oe . x . Me ae Pe : 4 ° : > ha ‘“ . as FS . ~ . . a | ' i . = ~ * > ; x ts a / =; * . 7 - ‘ fef Ps J . * 5 . s , . t bd . . . \ * t Sa, | _@ e . re « xs, 4 « , s all ‘ ; ‘ . 0 . ° hd . . ” : ‘ . * . . * ’ * m : 7 - - + ae —_ ba ce Uv . , Sf 2 ‘ ‘a ; Li it oap Oppo sition: fy Pe tition "ARGUMENT. A ‘The Court of pene Decision Correctly Held That the Article Wa’ Not Reasonably Capable of a Defamatory - Meaning Under aa haan Law. Ii holding. that the: Time aitinte Was not eapable of | the defatnatorvaqeiuiigs attributed to it by petitioners, the” Third Circuit coy fe fet ly applied established principles of the Penusyivania commer law of libel. Moreover, the Court of Appeals was correct in concluding that the District ‘Court Ate Kratt’s opinion makes al-o°~o Wedd. as a reading ef plain. But even Third Cireuit did misread Judge I oraat't On Wee of the article S capacity for-defumatory re, it property disposed of this action on & common - aw ground without, reaching and deciding the constitu- tional privilege Issue, S) Accordingly, there is nothing ae this C ‘onrt to review. The Third Cireiit hae piyperly: decided a question of state law, foe iv principles established and followed in a long line of Pennu-vlvatia state court libel cases and, indeed, fol- lowe i. in most if not all ot he iy Arne rican jurisdictions, There js nothing new or novel inthe Third € ‘ircuit? s decision. It Involves “we tse of iniportance 10 alfyone exee pt the party on Var litigants. (1) The Third Circuit Tested the Article’s Capacity , for Defamatory Meaning in Accordance With Pennsylvania Law. Petitioners ‘concéde, as they must, that the question of Whether the artiele is capable of a, defamatory meaning— thats, whether it can fairly and reasonably be construed to have the libelous me anings ascribed to it by petitione rs—is amatter of Jaw for the court under Pennsylvania law (P. ° Brief in Opposition ti Petition, 10). Sarkees +. Warwer-West Shae ee 349 ‘Pa. 365, BOS, 37 A, 2d 544, 046 (1944): Bagash 1 Elkins, 405 Pa. 487, 440, 6 ALS Gil, Ts (1962 J - Clarke. Allen, 415 Pa. 484, 487, . 204 A. 21 42, 49 (1964): Nervivk e. Dardaugll, Riess? 42% Pa. 288, 294, 256. A. 24 191, 54 ( 1962), 3 ‘Restatement Of ‘Torts 614 (1958). ¥ Petitioners also concede that the ——article’s capacity for defamatory meaning is to be tested a the effect it is fai calculated produce, the im- ae ession it would. yaturally engender, in the minds of the ; average persons among whonr ii is intended to cireulate— that is, the average Tipe reader (PL 9). Boyer ee Pitt Publishing Coinpauy, M24 Pal dod. 157, 188 A) 203, 204 (1936). fae 4 pee este This is preeisely what the Court of Appeals did, with painstaking care, The Court analyzed cach of the sections of the article petitioners Gomplained about and the libelous meanings ascribed to the words-by the innuendos. It cor- _ rectly pointed out that, under Pennsylvania law, inmendos: may be used eat eee the defamatory meaning attributed to words, but that’ they eannot be ased to intro- duce. new matter, to enlarge the Natural meaning of, the Words, or to put an nnfair and forced construction on the article. ae Andrew re Serautou Repiah, Pub. Co. 3646 Pa, @ 04, A427 (2 A, 2d 780, 785 (1950) ; Roaash, . Elkiuse supra, 405 Pa. at 440,176 \.2d at 679 (1962). ~The Third Circuit, correctly applying the above prin- -¢ ciples of Penns viv: ‘mia daw, held that the statements in the article. that Selle rh: uyS volf for business rather. than pleasure”? and that his ‘feame was running true to form” awhich were limited to one aetivity, golf--could. not: fairly » and reasonably be construed to hi ive the meaning imputed to. them hy petitioners, Nae Ivy .that they portrayed Sellers 3. Refererces to ghe Petition for a Writ of Ce erierae “are cited heremoas RL. : : Pa 10 ee Brief in Opposition to Petition als an overly materialistic or crass man for whom business success overrides all.concern for others. The Court also held that the statement in the article that **. . . his mind on a potential deal, Sellers hit te ball so awkwardly that Jit flew to the rear and struck one of his partners, James Walsh . 2 2°, fairly read, states that Sellers hit an. awk- ward shot because he had his nuind on a potential deal; that to so state was not defamatory because riot to eon- centrate properly in golf, to hit a ball awkwardly in golf, and to play golf for business are commonplace events; and that the tragie result of these commonplace events (the blinding of Walsh's léft eve) did not inspart a defamatory meaning to the article because the average Time reader “would recognize «that Sellers, the author of thie *timpos- sible’* shot,. could) not have foreseen its occurrence or consequences, 7 The Third Cireuit’s decision | is manifestly. be and clearly in accord with Pennsylvania case law. Compare Clarke. len, supra, a 1964 Pennsylvania Supreme Court decision: holding an accusation that a United States sen- ators voting record exhibited ‘communist tendencies’? was not libelous as a matter of law; and Nernick v. Dardanell Press, supraca Y967T decision of the same court holding an accusation’ that a township auditor’ repeatedly brought ‘outrageons’* and **bascless”? charges ° ‘carefully eal- culated to disparage the township and its officials’? which cost the t taxpayers nroney to investigate was not libelous as amatter of law. | | The principles followed in Sarkees ve Warner-West Corp:, supra, for determining capacity for defamatory meaning, Which the: Third Cireuit relied on here, are the law of Pennsylvania today. The three cases discussed at some length in the petition as supporting petitioners’ posi- tion-that the Tithe article *fwas at least capable of a de- - famatory meaning’ ’ (P. 19) and as being in conflict with » Brief in Opposition to Petition —— 11 Sarkees, correctly apply these same principles on the fssue of capacity for defamatory meaning and do not support’ petitioners’ position: Friday v. Official Detective Stores, Inue., 235 F.Supp. 1021 (KE. D. Pa, 1964) ; Birl?r, Philadel- phia Electric Company, 402 Pa 297,167 A, 2d AT2 (1960) ; Boyer v. Pitt Publishing Company, supra’ Tn Eriday and Boyer, the articles were clearly capable of imputing crim- inal conduct or invelvement on the part: of the plaintiffs ; in Berl the slanderous statement was held capable of imput- ing that, the plaintiff lacked honor and integrity, and was not-a person to be relied-on, insofar as his business deal- ings were concerned, because it categorically stated ‘that his former employer would have no furtlfer dealings with the plaintiff. . Ley Petitioners misread and misquote ‘the Third Circuit's opinion when they claim that the Court applied a test of what the average Timé reader would ‘probably’? conclude upon a reading of the article (P.11). No such test was stated, or applied, as a ‘reading of the opinion — will demonstrate. . ei The issue of whether an article is ¢: apable ¢ fa de- famatory meaning -is hot a fact issue under | eeatvatts law or under the general common law of libel; Nor does its resolution turn on a test which would find capacity for defamafory meaning unless ‘‘construing the facts int the light-most favorable to plaintiff’s position, reasonable men could not differ on the non-defamatory nature of the cOm- munication,’* as petitioners contend (P. 11). Qn the con- trary, the test to be applied by the Court is ‘the effect the article is fairly caleulated to produce, the impression. it . The petition, at p. 18, quotes only the second of the two newspaper articles involved in boyer. ‘the omitted first article is the one principally relied on by the Pennsylvania Supreme Court its being reasonablt capable of imputing persury on the part of the’ plaintiff. . : . : News rs 1) > Brief in Op pas Vai yee ik fifton \ ee a : would uaturilly eneeneber, um thie aindbs) of the caverage , persagns amore whomeat is. intended to etrenhate ts "Boyes PIP DP ublishtia Cu WME, SUP Ver, ; Petitioners’ chum that ther Seventh Amendment recht of trial by jury has been violated hy the Third Cirenit’s, deeiston rothus w holly, tiseoneenved. The Seventh Amend ment orieht te teal of envail actions by jury tia never heen absolute, as this Court has held frofa the Deeinnine. See, Capital Traction Co. v0. Hof, Ae BL SOTO CUSSS). OObvioushy the sratutine af motiodis to dismiss for Fathire to State a-elamm, for judement an the pleadines and for Su miary: judement, om Appropruie eases as here, are net i. eontiet with the rieht. ATE Ot tyre deetstotis, of this Court cited ir tlie petition In suppert of petitioners ® elarm that they have been deprived of ther right toca. jury trish in: velve rulings by lower courts that the evidenee, was in sufierent for subniission te a cdury, where the court under took te resolve testinfontal conthets, Credibility. isstesand—— etherinmestions of Tact. (2). Phe Third Cirenit Properly Aflirmed on a Conon. Law Ground. ; be "As the Court of Appeals points out its opintony itis Gear from Judge Wratt’s épinion the Distriet Court ried the Time varticle was net reasonably: capable of a de famatery meaning. . Nonetheless, petitioners’ persist i contention that the “Phird Cirenit- misconstrued: the Metric! Conurt’s apinion and thus *tevaded the vital issues of cothmen law and constitutional privilege which formed basis tor the Distriet Court's holding’* (?. 9-10).* But assuming petitioners are right. and the Third Cirenit ndentawrong. it is clear that the Court of Appeals PTO} ony: considered and decided the issue of the article's * eapacity. for defamatory meaning without reaching the Py Brief in Opposition to Petition . ae privilege issues. Two principles are involved: EF RPst, as this Gourt has he lel, Where (Wo sues are raised, aie of mon constitutional ng ure anil the other of constitutional ature, sunlit deersion of thie Hon Cots tittionall Issue would miake inteeessary a decision of the cons litwtion: issue, a court. of appeals should) decide the eat Alina Molo Co. we Timken Detroit Aale Co. B29 Us Se 129, 1G (1946): Roseuw berg e. Fiews Fiat. BR. we Rare Second, Court af Appeals has the power to affirm a Distriet Court if the result is correct even thoteh ats affirmmanee. is based son vrounds not considered or relicd on below, and even thoneh the -Distriet Court’s decision was based on imeorreet reason Ing. Meleering v. Gowran, 802 US. 258, 240 (1987) Pater Manufacturing Co. e. Government of VirguiTslands, 351 that the article was not reason: thly capable of a det famatory meaning aus aomatter of law, if even the Distriet Court had not so held or had applied the wrong lest in so holding, (3) Petitioners’ Alternative Invasion of Privacy Theory* of: Recovery. Petitioner Se Hers asks this ( ‘ort te re vie Woon certio- fo remand the action fo ihe District: Court on the issue of invasion 6f privacy, claiming that the Distriet Court in turn erred in not holding that Sellers was entitled to have the Rodd Os, Ste (td Cir. 96D). Plainly, then, the "Phitd’ Cirentt had the power abd duty tocaffirm on the ground vari the alleged error of the Court of Appeals ine failing : 7 privacy issue pissed upon by a jury. As already pointed out, this alternative privacy theory of recovery was raised. for the first time in the petition-for rehearing by the Third Ciyeuit, based upon an oblique reference: tos it in. peti- tioners’ reply brief, asserting that the Court of Appeals had ‘‘completely’ overlooked and failed. even to discuss”? ‘Sellers’? footnote reference to the fact that ‘this cause of e 14 dae Brief 7 Opposition to Pelition “action may also be sustained under the Pennsylvania com- mon law principle of invasion of. privacy’? (Pet. for Re- hearing, px 9). Petitioners’ complaint sounds solely in ‘ uae : ‘. ‘ on : ae ! libel, At nos time did Sellers. claim or suggest ‘in’ the District Court, directly or indirectly, that his: right of privacy’ had, been mivaded by publication of the, Time article. | The*'Phird Cirenit follows me consistent practice of refusing to consider issues, theories, and questions not raised below when reviewing decisions of. District: Courts. Shafer vo Reo Motors, Ine., 205 F.2d 685 (3d Cir. 1953) In Re Linda Coal and Supply Co., 255 BF. 2d 653. (8d Cir. 1958). This Court has approved the Third Cireuit’s prac- tice, Stating that'a Court of Appeals should not review. or consider, issues not raised below except in ‘exeeptional cir- éumstances where a failure to do so would lead to'a ‘‘plain en of justice.”’ Hlormel v. Melveriug, 3812 U.S. dol (1941. And this Court itself, in Virginian Railicay Company vo Mullens, 271 U.S. 220, 227 (1926), following - grant of certiorari, refused. to consider on review a new theory of liability not raised below by the plaintiff-appellee. Theresare no special circumstances warranting review by this Court of petitioners’ new theory of recovery. In effect, petitioners “are asking this Court to review and correct a mistake made by theirs counsel; not a mistake mide by the Court of Appeals ow by the District Court. “The new. issue involves the question of whether Sellers has - a cause of action, under the common law of P sare dt grape for invasion of privacy based on the publication of Time? s report of a judicial decision-of public interest, in litigation in which Sellers was a party. It is'a matter of state law, and its resolution is important to no.one except the parties to this action. , ; ; ~ Moreover Sellers’ cleventh hour claim that his present ‘action ¢ al be sustained. under a common law privacy. theory. Brie} iW Opposition fo Petition ; ; . 15 . is without substantive merit, in view of ‘the decision of the- ‘District Court. The: Pennsylvania Cases dealing” with the right of privacy establish that press reports of coirt pro- ceedings, including routine divorce actions, are privileged. Those. involved.in a court proceeding, however uawillingly and whether as parties or witnessestor bee ause of their relationship to parties: or witnesses, Stee objects if public interest ;;and the press is privileged to report the event and: their connection wath it. —Aequino «. Bulletin, Company, 190 Pa. Super. 02 8, 534-36) 154 A. 2d 422, 426-27: (1959). The privilege may be lost, where, as in equine, the article dealing withr the spite’ mari: we and divorce of “The danght¢ of the plhintiffs was in the nature, of fietion amd not a news report, the facts were ‘embellished: sensa- * tionalized and fictionalized, and the story. bedecked with a Jarge drawing bearing no resembrance to the divorced couple. In dequaoe, the Superior Court quite. properly held that-the‘lower court correctly left it tothe jury to determine "whether the purpose of the article was ses the reporting of news but to amuse and astonish the reading public and Whether the publisher should have realized the article . would be offensive to persons of orditary sensibilities, bg ° . . } . . a ~ - thereby constituting an unwar ranted luvasion of | the ‘privacy of the ‘parent’ plaintiffs. The Distriet Court, in its opinion im this. action, held ‘that the Tinte article was privileged as a fair report of judicial proceedings. That holding was based on a record which included the court decision re ported on and the depo- sitions of tlie parties to the aétion. fn so holding. the Dis- trict Court necessarily found that Tome ’s «report wits a substantially accurate summary of the proceedings con- taining no signitieant emissions and no exaggerated addi- tions or embellishments. Under Pennsylvania law the t fair report privilege is not lost by the inclusion in ‘the ae Lon of comment fairly based on the contents of: the record i at ; os , 16 Meick i Opposition to Petition the proceeding. Siiaidoa e. Lynctt, 409, Pa. 595, 187 A. a759 2 O86 (1965) 3 Cresson vo North ine ‘rican Co,, 280 Pa. O00, P24 AS495 (1924), Consistegit: with that finding, the Dis-- trict Court held thit the privilege was not lost by the use of a lively prose style and ‘color’? fo enliven an otherwise routine end dull account: of a legal decision. ~~ F. Supp. at DS), District Judge iKratt also found that. the alleged. ._ defamatory portions of the article were substantjally ae- curate, that thre Comment on the undisclosed state of Sel- lets? mind wi is fair, and that the-language coniplained pf “could only offend a person of the most highly tev ‘eloped sensibilities’, 299 F, Supp. at O86, At follows, therefore, that had petitioners. asserted in the District Court a claim that Time’s report of Judee Luongo’s decision in Walsh v. Sellers constituted an ‘ae: Gionable invasion of Sellers me of privacy, Judge Kraft would hiave he ld it privileged as a anatter of law for pur-— poses of the privacy cause. also. Judge ipscntcl 's Opinion wholly. precludes even the possibility of a ruling by -him that Time*s report was a substantially. seas ee ae- count of the court proceeding sand Sellers’ connection with it, and the privilege thereby lost. Judge Kraft also held, that Time’s article was coni- stitutionally privileged as: a-"‘matter of law under New. York Times prine iple seagainst claims for defamation. The decision of this Court in Time, Pie. v. Hill, 88) U.S. 874° mecwivey applying the constitutional ie in“a privacy | ° saction toa matter of public interest (an-artiele dealing with the opening.of a Broadway: play ), mandates the same. holding as respects petitioners? new privacy cause of action. ° ° Tn sunmharye the Court of Appeals has corre tly ap- plied the applicable state law in affirming the District Court’s holding that-the Time article Was -not re; sonably C “ ate Bricf Ww Opposition to Petition — - 7 capable of a a area meaning as a matter of law: Tis. decision is. entirely. in accord with the Jarge number of Pennsylvania etc ( ‘ourt cases dealing with the com- mon law of libel, which hi we consistently held that. the issue. of capacity for det famatory meaning is a question of law for the court. Its decisiof follows to. the letter the prin- ciples applied by Pennsylvania, courts In-resokying that issue. “Four federal court judges, Who are constantly re- ‘quired to pass upon Pennsylvania law questions, ere in aereement that ‘the challenged article is not -reasonabtly capable of a gt amatory meaning. nder ,the cireum- stances there is x reason for this Court to ener from its announced .general policy ‘and Jeave undisutrbed) this Court of Appeals’ holding on a question of state laws | B. The .District Court Decision Is Correct in mng | That the Time Article Was Constitutionally Privilege Petitioners, ask: -this Court. to review the District Court’s application of First Amendment -protection under New York Times principles to Time's report of a judicial decision of substantial public interest, even though the Court’ of: Appeals affirmed the District Court's judgment for responde nt” on common law grounds and accordingly: did not reach the. constitutional’ privilege issue, P Ctition: ers’? primary contention is‘ that the -application of First Amendment protection to Time’s report by the District ‘Court represents an unwarranted extension of New York Times principles, and that the Court of Appeals evaded its duty in not re: whine the issue and reversing the Distri ict Court.’ In the final paragraph of their petition, they also | challenge the District Court’s holding that the record be- fore it demonsirated a ‘complete lae k of ‘actual m alice"? in the New York Times sense on the og ‘of respondent's - employees. mg j b> " ‘Pe titione ‘Ts are avrong im hoth contentions. .T = ap- plication’ of First Ame ndment Protection to Time’s report hy the District Court is entirely: consistem withfand sup-- ported by the decisions of this Court and the decisions of | slower federal courts applying. the principles of New York Times. «There therefore-is no- need Jor review by this: OO of tht District Court *s ‘holding on constitutional sida hat eh : fae F a . : } (1) The First Sesendinnsatt Protection Applies to Pub- lications of Matters of Public Interest.. ‘ at “ Betitiongss’ Areume nt is hasicnily that ‘the District ms ourt evred. | int holding that the Time articke was’ “cousfitue . tien ly. privileged unde New York Pime s Corr, Sullbwan, 266° UL S..854 (1964) ancb related cases? Dee cause fhey- lo Tot e stend such protection’ byvend. sti iteéments concerning - ‘s public officials” and ‘public feures’* to matters of. ids Interest. ' Potitione PS aure plainly Ossie. as should ngw be ap. , parent. The basis of Ne we York Tides Was that ‘freedom of expression es public que stions is secured by the First ~Ametidment.? 376 U » Seat 2692. This Court has specilically applied the constitutional privilege in libel actions to public Rs ollicials | New York Times]; public figures, both nationally " known | Batts | ‘and local. [Greenbelt |s and, in a false light “privacy action, to a matter, of public inteyest (thé opening” ‘of i Broailway hic iy) [//it].° In its deetsions since New 2 . Those cases inehide Garrison ve Louisiana, 379°C: S. 64° (19d Henry v. Collins, 38U-U. Ss 356: (19635y: Linn v.. United Plant ngs iWoorkers, b83 0. S..53 (1966) : RoSenblatt 7. Baer, 333. ae ee hip aig Time, due. v. Mill, 385 U.S. 374 ¢1967): Curtis Pub ‘ishing Co.t. Butts, 38S uw Siw Pg A: Beckley News- - papers ¢ OV. 7 "Hans? 389 U.S. SI ( 1967 ‘= Almant v. Thomp- son, 390 © 427 (1908); Pickering + hee of Lducation,. 391 LU. #503 1608 1: Greenbelt ( aati p ublishing . Assoc lation, Ine: Vv. Gee HW) >. Ct. 1537 (1970)... . Ow ot - 7 7 = in cao tgs nes * Petition eee 19 York: Times this court has RRS a to PR Oe that freedom of expression. upon public questions is secured ‘by the Fi Amendment? - It sis ‘clear! aoe that the c es foundat ion of the privilege first. sel forth an Vew Fork Times is the publ right to hoe informed concerning tmat- - . 9 ters of public interest. 0, ; : Mae Saree. he certs of appeals hive sp understood,. pul have * applied re privilege tomate Vs of public interest iu Cited 7 ae Vedic Wo Laboratgrics, Ine oe. Ceylar india Broadcdisting : - Syste m, lue., 404 F.2d 706. (Sth Cir, 1968), Cert. denied B94. * . 4 U. S. 921 (1969) (television brtoadcast dealing with mail order niedical laborjitories) ; Time, luc... MeLaney, 406° F’; 2d 565° (oth Cir), cert. denied, B99 U.S. 922 (169) (ar- ticle de aling with election campaign in Bahamas) ; Rosiu- bloom ve. Metromedia, luc. 4150 FB. 2d 892° (1969), cert, granted, B97 U.S. 904 (1979); (radio. broddeasts dealing with police arresty of deale rs and distr ibutors of allegedly si ‘obscene malazines) ; ‘Wasserman eTimes, Ine, 424 Fe 2d bes an 920 (D.C. Cir, 1970) (article dealing with: police ‘arrests © of: Gi Mafia leaders in a public restaurant) ; Bou lir Hut i, Ine. vo. Time, Inc., ~ F. 2d — (Stl Cie. 1970) 27 490, uy |. May k I9UF (article dealing with upcoming Mat “Golf | Tournament and public accoinmodations available fob cae * - ">. tators).7 _So atso have a number of federal district, COUrts po* SS" [e.g., Grove’ ts Dun @ Bradstreet. Ine. 308 F, Siipp. 1068 6 W.. DL Paz 1970) (imereantile, eredit’ ae state courts [e.g., Crrayson vw. Curtis, Publishing Co... 72.W ash. . 999, 436 DB. -2d 756 (1967) (article dealing with ‘sang: manlike conduct of basketball coaches, players and offli- we, ‘ . “* F . . : e ‘| cials) |. pots 2 “ ‘ Sts. 3 ; 6. Garrison, i Us S.at 74-75: Rosenblatt, yc cS. mv 5: RO: Pickering. 391 Us. at S74; Butts, B88, 3. at 147: Hal, sivas -U. 5. at 387-88. — = The opinion of the Court of Appeals for the Fifth Cireuit in Bon oe Hotel, Inc. v. Timewlne.,, which’ igs not yet reported, is at- tached hereto as Appendix’ A. . Mg oS - o> as ‘ 20 Brie tin Opposifiow fo Petition C The iaotsigd of Judge Luonge in Walsh +. Sellers, ‘on se h Time reported, was prominently ‘eatured in Section I of the April 19, 1966°isste of Vnited States Law Week ‘under the bold. face heading **Golter Does «NOt Assume Risk Of Injury hy ‘Impossible’ Shot’’. The opening sen-_ tenées of Law Week's coniment read: “Let the duffer be- ware, His. playing partners do not assume: the risk of his negligénee and ineptitude, a to the U.S. Dis- ‘trict Court for Exstern Pennsylvania.’ “Key portions of Judge Luouvo’s opinion were re printed in Section 2 of that INSU, unde ‘ry the general heading ‘*Sienifie: ant Opinions Not y yt Ge He rally Re ‘ported’? Judge Luongo’ ~ de ee involved a ruling of par- ticular publie inte rest, not only to the legal profession but to laynic ‘yas well. Millions of ‘Americans who parti¢ipate in sports doubtless believe that they cannot recover for any “injuries they may sustain during those activities or that they cannot be held liable for injuries which they them- selves inflict. Walsh vc. Sellers presented an unusual factual situation of almost textbook ingenuity in which the extent of the “assumption of risk’? ‘doctrine for golfers (and by analogy, other sports) could be clarified. Judge Luongo’ s opinion severely limited that doctrine, holding that a per- “Son assumes the risk of being hit by a golf ball only when he is standing in the ‘apparent orbit’? of the shot. Tn short, the decision undoubtedly Was of more immediate interest to the American public. than the latest ruling of this Court CONCELNING: patent issues or antitrust law. Time?s report stuck to the point. It did Jhot deal with Sellers’ personal life as petitioners suggest, or otherwise report extraneous infgrmration, The rae date in the article came from: the read on which Jude ge Luongo bh: ased his decision, which included the de ‘positions of the parties. The statement that Sse lle Ts played golf for business. reasons ? Brief in Opposition to Petition : ?1 was the explanation for the otherwise curious fact that the -action was brought not only” against him personally but dlso against his company. ~The decision in Walsh + Sellers was obviously a mat- _ ter of legitimate public interest... District Judge Kraft Cor. rectly interpreted and applied the principles of New York Times in holding that the: judicial decision, which he found. involved ‘two Gutstandinig points of reader interest the unusual flight of the Dall and the legal decision that the defense of assumption of risk was inapplicable under the particular facts,’? waS “a matter of public intere(@S) and that therefore Time's report: was coustitutionalypriv- ileged. 299 F. Supp. at 5s6. | | (2) Respondent Is Entitled to eanimary Judgment. The record upon which the District Court based its grant of summary judgment for respondent Was a complete one. In addition to Judge Luongo’s apinion in Walsh vo. Sellers and the de ‘positions of Walsh and ‘Sellers in that case, on which Time’s report wis based, the record-ineluded the following: (1) Respondent’ Ss answers to two sets of interrogatories, setting forth?in detail the editorial process relating to the article: ( (2) Time’s editorial reference file relating to the arfiele; (3) The depositions of the five in- dividuals whe participated in the preparation of the article and who were examined at length by petitioners’ counsel— Time’s Philadelphia correspondent, Time's Managing Editor, the writer of the article, its editor, ‘and the re- searcher who checked it for accurae y;and (4) The support- ing affidavits of the article's writer , editor and researcher, all of whom verified their belief in the truth of the article when if was published. Petitioners submitted no opposing affidavits. : — as - Brief ii Opposition to Petition : fre As the District Court *s Ragano . Time, ie 302 F. Supp. 1005 (M. D.- Fla. 1969), appeal filed (5 Cir.) ; cf. Pape v, Time, Inc., 419 F.2d 980 (7 Cir, 1969), rev'g 294 F.Supp. 1087 (N. DD. Hl. 1969) (evidence of aetyal malice suf- ficient to go to jury): Stearn v:; MaclLean-Huainter, Ltd., 46 Fok. D. 76 (S.D.N: Y. 1969) (complaint sufficient to state cause of action). °16. United States v. Diebold, Ine... 369 U.S. Bg 655 (1962): Goldwater v. Ginzburg, supra at 337: Time, Ine. . McLaney, supra ‘at 571-72. asserman Vv. Time, Inc., ee 2d —.(D..C. Cie, 1970) Al4 | _Appen: lin A ? - It is noisy. Not the least amount of noise sometimes is ‘aused by ‘the clacking of highheeled shoes going down the fire escape outside a guest's window at 4 am.’?;-and (10) the hotel has a. ‘‘sellout crowd’? for the week of April 6 through April 12, 1964. Bou Air also objected to a draw- ing of the hotel at the beginning of the article. Jenkins in writing the article relied on interviews with persons who had stayed at the Bon Air, reséarched the files of Time, Ine. with respect to Augusta and its baek- ground, and. drew upon his thirteen years’ attendance at the Tournament in Augusta and also upon the occasions When he was a registered guest or visitor at the hotel. After the article was completed and a month before its publication, a Sports Hlustrated resei ee Sarah Pileggi, checkud the article for accuracy by telephone cony ersations, by personal interviews, by consuling Time, Ine. files and by reading relevant published sources on golf tournaments and’ Augusta. Pileggi also sent a list of questions concerning specified’ statements in the article to Sports Illustrated's Atlanta correspondent, Jim Minter, who ‘with assistanee from an Augesta newspaperwoman cheeked the accur acy of these items. Detailed answers were returned and are ‘included in the affidavits. | The distriet court examined the urticle and, in’ par- ticular, the ten alleged “det famatory -stacements in light of the various affidavits and answers .o inte rrogatories in the record and found *that no. proof was adduced that had ‘the canvincing clarity which the. constittitional standard, oe Ps demands, This finding is clearly supported by the ree- cord. Jenkins relied on his own experic nees at the Bon Air in making: many of the stateme nts and, in addition, had the -article thoroughly investigated: for accuracy hy members of Time’s research staff. The ‘affidavits and answers to interrogatories in the cena de ‘monstrate ‘the thoroughness © of the research conducted by Time’ s staff. Bon Air pre- . o> Appendix A _ NALS. sented no evidence that Time: or Jenkins published. the . \. statements with knowledge of their falsity or with ““se- ‘rious doubts as to the truth of [the] publication.’’ Si. Amant ve Thompson, 390 U.S. 727, 731 (1968) : Time, Inc. . McLaney, supra.at 572-73. Two alleged ‘defamatory statements merit further dis- cussion: (1) the statement that, the ‘hotel. had a ‘white- washed face’? and (2) the sketch- of. the hotel at the beginning of: the article. In investigating the accuracy of . the article, Time ’s researchers gave three different an- swers: that the hotel was—white-yellowish color, that it was painted outside white, and that it was painted a daz- aling white. | ; At the beginning of, the article Time ‘published a sketch of the hotel and . surrounding grounds by Mare Simont, who had visited the hotel several times during the preparation of the sketch. ‘Bon Air objected to two areas of the sketch: at the far end of the hotel three wooden braces support the outer hotel Wall, and near the swimming pool a small ‘amount of trash covers the ground. The re- ‘searcher’s report stated that during her inspection of the hotel. the grounds. were-clean. In addition, Time admitted: that the hotel walls were. not supported, by wooden braces. These statements are clearly net 100% accurate. Truth ' or falsity, however, is not the constitutional test: the state- ments must be published with actual knowledge of their falsity or with reckless disregard for their falsity. We are _ not convinced that Time’s decision to describe the hotel - as having a “‘whitewashed face,’ instead of a ‘‘white- yellowish face,’ an ‘‘outside white faée,”’ or a ‘*dazzling white face,”’ is evidence that the statement was ‘published with actual malice." In publishing the sketeh of the hotel, " 17.-"A word is not a.crystal, transparent and unchanged, it is the skin of a living thought and May ‘vary greatly in color and con- tent according to the circumstances and the time in whiclt it is used.” Towne v. Eisner, 1918, 245.U. S. 418, 425. AIG | Ks Appendix A as explained in its affidavits, Time attempted to convey to its readers, in what amounts to a. ‘“artoon, the condition of the hotel as-deseribed in the article.’ Again, the evidence presented by Bon Air is not sufficient proof that the sketch Was published by Time with, actual malice.” Freedom of expression must have a necessary breath-— ing space if it is to surviye.2” If these statements raise factual issues of: actual matice, that eeessary breathing, space becomes almost meaningless. As has. been: noted, actual mali¢e is a constitutional issue to-be determined initially by, the trial Judge on motion for summary jude- ment... We are convinced that Bon Air has not presented issues of fact. from whiell a jury could find that Time pub- lished the article with actual knowledge of its falsity or with a reckless disregard, as to whether or not it: was false.” iy P “*) a . : IS. We would be confronted with an entirely: different situation if a trite photograph of the hotel had. been used with additional pic- tures, oF wooden braces did trash superimposed en the photograph. 19.. The decisions int :\Wasserman y. Time, Inc, —.F, 24 —. "(D. C:.Cir., Mar. 3, 1970), and Ragano v. Time, Inc., 302 F. Supp. * = 4 2 ; ? . . + . ‘ 1005. (M.D. Fla. 1969), are distinguishable. . Wasserman involved | the same factual situation as: Ragano. Time had published a photo- . —« graph of seven men sitting in a restaurant in Queens, New York. The article referred to the men as “top Cosa Nostra hoodlums,” even though Time knew. that Wasserman snd Ragano were present with: the other five men only in an attorney-client relationship. This’ was sufficient proof of actuak malice to survive Time's motion for sum- mary judgment. 9 : ‘ 20. New York Times Co... Sullivan, supra at 285-86, : A i 9 i “21: The follawing «statement by Judge Tuttle in MeLaney seems ‘pertinent here: ay oa “Where . >. it is plain that the record has been, fully developed ” by depositions and -aflidavits on a metion for summary. judg— ment, and such record: demonstrates that. construing all of the facts and inferences t? be drawn therefrom -in favor of the party against whom the judgment is entered, he avould not be entitled to have a jury verdict stand, we have not hesitated to ~ hold that tke grant of summary judgment is proper.” 406 FF. 2d at 571-72. co, °. ‘Appendix &£ . jan i Al7 For these reasons we conclade that the district did tiot err in granting. Ti ment. The Judgment is Pcourt me’s motion for summary judg-- ere AFFIRMED. . 3 | , oe 5 - . . e a) : ° os . Sr ae ene —— 4 « . a .' 2 o --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0104%3A2. Public record. Not legal advice.