The opinion of the court was delivered by: CONGER
The defendants' motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 28 U.S.C.A., presents problems in connection with the application of the laws of slander and libel to the medium of television.
The complaint alleges that the plaintiff, an economist by profession has been, since May, 1940, an employee of the United States Government in various capacities; that in assuming his positions he was required to, and did take an oath that he did not belong to any organization which advocated the overthrow of the Government by force and violence; that the Attorney General of the United States has consistently ruled that the Communist Party was such an organization.
The complaint further alleges that the plaintiff is not and never has been a Communist nor a member of the Party, nor a Communist sympathizer, of which facts the defendants knew or should have known at the time of the remarks in controversy.
The complaint further alleges that on July 30, 1948, the defendant Bentley testified before a Senate Sub-Committee, among other things, that she had joined the Communist Party in 1935 and had remained a member for approximately ten years; that she had acted as a spy for the Party; realizing that information obtained was going to the Soviet Government; that using a fictitious name and hiding her true identity, she obtained confidential information from the plaintiff in his capacity as an employee of the United States Government; and that plaintiff was a member of the Communist Party.
The complaint alleges that the plaintiff denied under oath the charges made by the defendant Bentley before the same Sub-Committee on July 31 and August 3, 1948, and his denials were widely publicized prior to September 12, 1948.
On the evening of September 12, 1948, it is alleged, the defendant Bentley appeared on a certain television broadcast known as 'Meet the Press', which program was sponsored by the defendant General Foods Corporation and was broadcast over the several stations of the television network of the defendant National Broadcasting Company, Inc., including WNBT-TV, New York, and WNBW-TV, Washington and other stations in the United States, and the program was seen and heard by hundreds of thousands of persons; that in the course of the program, the defendant Bentley repeated the charge that she had made before the Senate Sub-Committee by the following statements in answer to the following questions:
'Question: May I ask you one more question?
'Bentley: Yes, go ahead, Mr. Brown.
'Question: That is this Miss Bentley: you've made charges in your testimony before a Congressional Committee naming several people as communist. Now knowing very well here, Miss Bentley, you don't have Congressional immunity, would you now identify William Remington as a communist, or Alger Hiss, or anyone else that you've named?- Knowing that you might open your way to a libel suit?
'Bentley: Yes, I would certainly do that, but as long as i am under subpoena from a committee, I don't believe that I should go talking about these various matters until the committee has completed its hearings.
'Question: Well, you are talking about the matters here and you've named these people as communists and I wish you'd do it out in the open.
'Question: Will you now name William Remington as a communist?
' Bentley: Certainly, I testified before the committee that William Remington was a communist.
'Question: And do you say that here and now?
'Bentley: Yes, I said that before the committee and I would certainly repeat my testimony ...