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May 8, 1970

Harold KONIGSBERG, Plaintiff,
TIME, INC., Defendant

Pollack, District Judge.

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

"The Congressman and the Hoodlum," a Life Magazine article dealing with organized crime, was published on August 9, 1968, by Time, Inc. The article primarily concerns New Jersey Congressman Cornelius E. Gallagher's involvement with the Mafia. In the course of the article, reference is made to Harold K. (Kayo) Konigsberg who, at the behest of a "capo in Cosa Nostra" (Article at 20), is supposed to have disposed of a body which was in the basement of Gallagher's home.

 Konigsberg is now suing Time, Inc. for libel, claiming that the story that he disposed of a body, that of the missing Barney O'Brien, is not only untrue, but also malicious, vicious, and defamatory. Konigsberg complains that the article portrays him as "the most dangerous uncaged killer on the east coast" (Article at 25), quoting a federal official who said, "'Kayo was an animal on a leash for Zicarelli [the Cosa Nostra "capo"] and others * * * he'd kill for the fun of it'". (Article at 25) The Life article goes on to say: "Konigsberg shot some of his victims, throttled others with his bare hands. As a loan shark, he took over the deadbeat loans of other shylocks and joyfully went about squeezing cash from the borrowers, sometimes by beating them with ball bats and chairs". (Article at 25-26) Konigsberg argues that all such statements are untrue, false, malicious, vicious, pure fiction and defamatory.

 Konigsberg says that equally untrue and malicious were statements that he "sought to cooperate with Justice Department and other law enforcement officials, that he had interred many murder victims, that he talked or offered to talk about a gang cemetery, and led officials to a mash pit and graves of murder victims". (Complaint at 3)

 Also complained of is the publication of a photograph of Konigsberg which is alleged to be a "distorted and unfair picture * * * taken many years before, and part and parcel of [Life's] plan and scheme to defame plaintiff and hold him up to public ridicule and scorn". (Complaint at 3)

 Konigsberg seeks Five Million Dollars in compensatory and punitive damages.

 Defendant has moved for summary judgment, dismissing the complaint on the merits, on the ground that there is no genuine issue as to any material fact and that as a matter of law, Time, Inc. is entitled to judgment now.

 Before it can be determined that no issue of fact requiring a trial exists, it is necessary to establish what such an issue would revolve around. In other words, does the standard for recovery in defamation suits which was enunciated in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) apply here?

 In New York Times, the Supreme Court held that a public official cannot recover 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 279-280, 84 S. Ct. at 726.

 The New York Times case has not been given a narrow reading. Three years before the Supreme Court made any move to extend the holding in the case, Judge Lumbard wrote, in Pauling v. News Syndicate Co., Inc., 335 F.2d 659 (2d Cir. 1964):

We realize that the sole point actually determined by [the New York Times ] decision was that the First Amendment requires a state to recognize a "privilege for criticism of official conduct," * * * extending to misstatements of fact, this being regarded as in some way the reciprocal of the privilege of federal officials against liability for defamatory statements "within the outer perimeter" of their duties. * * * Although the public official is the strongest case for the constitutional compulsion of such a privilege, it is questionable whether in principle the decision can be so limited. A candidate for public office would seem an inevitable candidate for extension; if a newspaper cannot constitutionally be held for defamation when it states without malice, but cannot prove, that an incumbent seeking reelection has accepted a bribe, it seems hard to justify holding it liable for further stating that the bribe was offered by his opponent. Once that extension was made, the participant in public debate on an issue of grave public concern would be next in line; thus, as applied to the case in hand, if a newspaper could not be held for printing Dr. Pauling's charges that a member of the Atomic Energy Commission had "made dishonest, untrue and misleading statements to mislead the American people" and that a United States Senator is "the greatest enemy * * * the United States has," as the New York Times case decided, one may wonder whether there would be sound basis for forcing it to risk a jury's determination that it was only engaging in fair criticism rather than misstating facts if it printed, falsely but without malice, that in saying all this Dr. Pauling was following the Communist line. 335 F.2d at 671 (Citations omitted)

 More recently, and since the Supreme Court has handed down decisions in Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967) and Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), other Courts have also read New York Times broadly.

 In Butts, the Court extended the actual malice standard to cover criticism of public figures who are not public officials. The Court wrote of the "strong speech and press interest in publishing material on public issues, which we have recognized as parallel to the interest in publishing political criticism present in New York Times ". 388 U.S. at 160, 87 S. Ct. at 1994.

 In Hill, the Court extended the actual malice standard into a new area, holding that in an invasion of privacy suit, erroneous statements about a matter of public interest "if innocent or merely negligent * * * must be protected if the freedoms of expression are to have the 'breathing space' that they 'need * * * to survive'". 385 U.S. at 388, 87 S. Ct. at 542. (Citations omitted) The Court found that the opening of a new play, based in part on a true incident, was a matter of public interest.

 Lower Courts have now applied the "actual malice" standard when people and institutions involved in matters which the Courts find to be of public interest have sued for libel. An early one of these cases is United Medical Labs., Inc. v. C.B.S., Inc., 404 F.2d 706 (9th Cir. 1968), cert. denied, 394 U.S. 921, 89 S. Ct. 1197, 22 L. Ed. 2d 454 (1969). Here, a mail order laboratory ...

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