The opinion of the court was delivered by: WEINFELD
This is a motion by the defendant pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted.
Plaintiff seeks to recover damages for slander and libel based upon an alleged oral statement made, and an identical statement contained in a press release issued, by the defendant. The claims for slander and libel are joined in a single count. Jurisdiction rests upon diversity, the plaintiff being a citizen of the State of Maryland and the defendant of the State of New York.
In broad outline the complaint alleges that on the 5th day of January, 1956, the defendant at a press conference in the presence and hearing of newspaper reporters and representatives of newspaper associations maliciously spoke, and at the same time furnished and published to those present a written press release, of and concerning the plaintiff as follows:
'I intend to find out if Willie Gilzenberg and Tex Sullivan (boxing director and promoter of the London Sporting Club, which had promoted boxing at St. Nicholas Arena) have been in violation of the law forbidding associations with known criminals such as Magliano and his partner, Angelo Munafo.' (Angelo Munafo, meaning the plaintiff herein);
that said words were intended to apply to plaintiff and to hold him up as a known criminal; that the story was published in newspapers in Baltimore, Maryland where plaintiff resides and conducts business and was also published in various papers throughout the United States.
The complaint further alleges that the words so spoken and published by the defendant of plaintiff were false and defamatory, made without just or probable cause, that as a result plaintiff was injured in his good name and reputation, and further that he lost the patronage of customers of his restaurant business and standing with the boxing profession, particularly with the Boxing Commission of Maryland by which he was licensed to promote boxing matches. Plaintiff seeks to recover general, special and punitive damages.
The first ground upon which dismissal of the complaint is sought is that since it appears from the face thereof that the defendant was Chairman of the New York State Athletic Commission he is entitled to immunity for acts performed in the discharge of his duties. However, the complaint does not charge, nor does it appear therefrom, as contended for by the defendant, that at the time the alleged defamatory words were spoken and published by the defendant he was engaged in the performance of any official function as Chairman of the State Athletic Commission or in the exercise of any of the broad powers granted to the Commission.
Paragraphs 9 and 10 which contain the nub of the plaintiff's claim omit any reference to the defendant's status and the allegations are directed against him as an individual. While it is true that previous paragraphs of the complaint state the defendant is Chairman of the New York State Athletic Commission and that as such he held press conferences, these allegations are specifically limited to occasions 'prior to the times hereinafter mentioned.' The earlier references are clearly descriptio personae and are intended to show that the defendant was acquainted with press conference techniques and aware of the likely wide distribution of statements made by him, written or oral. Upon the complaint as drawn there is no basis for determining (1) whether the immunity doctrine
usually extended to judicial and quasi-judicial officers also protects one who is the head of a division of an executive department;
and (2) assuming arguendo that such an officer is entitled to immunity for official acts, whether in holding a press conference at which intended action was announced the defendant was engaged in the performance of his official duty.
Since it does not appear from the face of the complaint that the statements were made in the performance of official duty, it is sufficient to withstand the first ground of attack and the defendant, if so advised, may plead the defense of privilege.
The defendant next challenges the complaint on the ground that there is no showing the defendant requested, instigated or induced the publication of the alleged defamatory matter in the various newspapers. Of course the delivery of the release to the newspapermen was publication in and of itself.
As to the further publication by newspapers, the complaint alleges that the defendant knew or should have known that his statements and those contained on the press release would be published in newspapers in the United States. While it is true there are no words which in haec verba charge that he requested, instigated or induced the publication by the various newspapers, certainly the delivery of the release to the assembled newsmen was not without objective. In and of itself this was an affirmative act to induce representatives of the newspapers and other news media to publish its contents or substance.
One must be naive not to understand that a person who deliberately prepares and issues a release to press representatives does not intend thereby to obtain the widest circulation of its contents -- indeed that is his very purpose.
The press release, in conjunction with a press conference, is recognized by publicists and public relations counsel as the most effective means of securing extensive coverage of its subject matter. To suggest that one holding a press conference at which he makes statements or issues previously prepared releases intends to confine his remarks to the members of the fourth estate is pretty much like saying that a man who takes deliberate aim really plans to miss his mark. The complaint is sufficient to support an allegation that the defendant was the instigator of the alleged defamatory matter.
The defendant also contends that the alleged statements both oral and written, are not actionable per se. It is of course recognized that the same words may be libelous per se and yet not slanderous per se.
The historical basis for the difference in approach has been the view that the damage by written word is more widespread, reflects a more deliberate purpose, and the resulting injury more lasting and permanent than the spoken word, often uttered in the heat of an angry moment.
Almost one hundred and fifty years ago Lord Mansfield severely questioned the rationale for the distinction between oral and written defamation,
but found it too firmly entrenched in English law to overrule it and despite continued criticism thereafter by English and American courts it has remained imbedded in the law. However the development of modern media for mass communication and the celerity with which extensive and far-flung audiences can be reached by the spoken word have recently led some courts to suggest a reappraisal of the age-old distinction.
Commentators have advocated its abolition as obsolete.
The defendant's position is that, absent averments of special damage, the spoken words 'known criminal' are not actionable because (1) they are not injurious upon their face since they do not necessarily charge a crime involving moral turpitude and may only refer to a misdemeanor; and (2) they do not defame the plaintiff in his occupation or business.
In general, an utterance is deemed slanderous per se when the publication (a) charges the commission of a crime; (b) imputes some offensive or loathsome disease which would tend to deprive a person of society; (c) charges a woman is not chaste; or (d) tends to injure a party in his trade, business, office or ...