The opinion of the court was delivered by: MCLEAN
This is an action for libel and for invasion of privacy. Federal jurisdiction rests on diversity of citizenship. Defendant moves for summary judgment.
The first count in the complaint is for libel. It is based upon an article by Trevor Armbrister, entitled "Is There Any Hope for Haiti?" published in defendant's magazine, the Saturday Evening Post, on June 15, 1963. The article discussed the turbulent political affairs of that republic. Apropos of possible successors to Francois Duvalier, the present president, the article stated:
"Who might rule in the wake of Francois Duvalier? A look at the exile leaders is less than reassuring. * * * Former president (for 19 days) Daniel Fignole has great support among the black masses, but he is a demagogue (one 1957 slogan: 'Vote for me and I'll have a white woman in your bed on election night')."
The affidavits disclose the following facts:
Plaintiff is a citizen of Haiti and for some years prior to 1957 he took a prominent part in its politics. He was Minister of Public Health and Education in 1946 and from November 1950 to April 1955 he was a member of the legislature. He held no public office thereafter until May 25, 1957, when he was appointed Provisional President of Haiti, a position which he held only until June 13, 1957, when he was overthrown and forced into exile.
Prior to plaintiff's appointment as Provisional President, Haiti was in a turmoil. A series of general strikes paralyzed the country. The office of president was vacant, and the government was being administered, as far as possible, by a temporary Executive Council. There were a number of aspirants for the post of president, of whom plaintiff was one. It was the Executive Council that appointed plaintiff provisional president. There was no general election.
Defendant predicates its motion upon New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). The nub of the rule there laid down was stated by the Court as follows:
"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." (376 U.S. at 279, 84 S. Ct. at 726)
Plaintiff did not hold public office at the time of the statement attributed to him in defendant's article. He was therefore not a public official and the conduct attributed to him was not official conduct. He was, however, a candidate for office. He was also a prominent public figure in Haiti. The question is whether the New York Times rule applies to him.
There is no case, as far as either counsel or the court can discover, which decides whether or not the rule is to be applied to public officials, candidates or public figures in foreign countries.
As far as residents of the United States are concerned, no case has thus far extended the rule to candidates for office. In Pauling v. News Syndicate Company, Inc., 335 F.2d 659 (2d Cir. 1964), cert. denied, 379 U.S. 968, 85 S. Ct. 662, 13 L. Ed. 2d 561 (1965), the Court of Appeals speculated on this subject and expressed the view that the rule might be so extended. The court's remarks were dicta, however, as the point was not involved in the case before it.
As to public figures, a federal district court has recently held that a well-known advocate of extreme conservative views, who was neither in public office nor a ...