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June 17, 1975

Mary Anne GUITAR, Plaintiff,

Robert L. Carter, District Judge.

The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge.

This action was commenced in early 1973 alleging defamation and a conspiracy to violate certain sections of the Communications Act of 1934, as amended. A second action, consolidated with the principal one, contains similar claims. *fn1" Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1332.


 Plaintiff is a free-lance writer residing in Connecticut. Defendant Westinghouse Broadcasting Co., Inc. (Del.) ("Broadcasting") owns and is the licensee of radio station WINS in New York City. Broadcasting is a wholly-owned subsidiary of Westinghouse Broadcasting Co., Inc. (Ind.), an Indiana corporation which in turn is a wholly-owned subsidiary of defendant Westinghouse Electric Corporation ("Electric"). Defendant H. Paul Jeffers was a full-time news editor employed by WINS. Defendant John Yottes was a "some time casual" employee at WINS prior to December 3, 1972, and subsequent to February 2, 1973. Defendant Robert Martin Corporation is a New York corporation engaged in the construction and development of a real estate project in Westchester known as Tarrygreen. Defendant Martin Berger is its president; defendant Robert Weinberg is its chairman of the board; defendant Gerald David Lloyd (in the second action) is its vice president; and defendant Margaret Migliore Schneider (in the second action) is its employee.

 Factual Background

 On December 17, 1972, WINS broadcast a review by Jeffers of a book written by plaintiff entitled "Property Power." The review stated:


"The hope of a lot of city dwellers is to find a place in the suburbs or the country with trees and green grass and clean air. Indeed, that 'better life' has long been part of the so-called American dream. But, as you may have noticed, some suburbanites are not too eager to have city folk moving in. An article in yesterday's Times describes resistance in New England to new home building. This suburban resistance is the subject of a book by Mary Anne Guitar, who is neither a city planner nor an architect, but rather a writer about homes and conservation. Her book is PROPERTY POWER. It amounts to a handbook on how to keep others out. Not just the businesses which have been looking to relocate in the suburbs, but also people. Mary Anne Guitar recommends an amazing arsenal of weapons to keep the suburbs pure -- law suits, the ballot box, tax-payer petitions, and many, many other devices. The battle cry seems to be 'keep the others out.' People become secondary to trees and space . . . especially if the people are new comers. PROPERTY POWER denounces progress even if it means decent, livable homes for people. PROPERTY POWER says the rose covered cottage in the country is okay for those who got there first but must be off-limits to those who now would like to breathe some of that fresh country air. The author of PROPERTY POWER lives in Redding, Connecticut and has been busy there keeping HER piece of New England 'clean and green', as it says in her author's biography. Yet Mary Anne Guitar is not a native New Englander. She was born in Missouri. One wonders where she would be living now if someone in Redding had decided to invoke property power in the 1950's when Miss Guitar wanted to move into town. What bothers me about PROPERTY POWER is the seeming hypocrisy of it. On one hand the author writes, 'most of us simply want to live on the land.' Then she proceeds to write a book telling how to keep 'most of us' from doing so. Published by Doubleday at $6.95, Mary Anne Guitar's PROPERTY POWER is a blueprint for exclusion . . . and, if followed, I'm afraid it's a blueprint for stagnation in the suburbs. I'm H. Paul Jeffers."

 Property Power2 had been published by Doubleday in June of 1972. Prior to the Property Power review Jeffers had broadcast sixty other reviews over WINS, written eight books and produced several records.

 On December 15, 1972, Jeffers read an article appearing on the front page of The New York Times entitled "New England Resists Land Development Pressures." According to Jeffers, he decided that a review of plaintiff's book would be "pertinent and timely." Affidavit of Jeffers, para. 3. The review was prepared and recorded on December 16, and broadcast the next day.

 On December 13, 1972, a meeting at which plaintiff was a principal speaker was held by the Save Irvington Committee, an organization formed for the purpose of expressing and organizing opposition to the rezoning needed for the construction of Tarrygreen. Berger directed that Schneider and Lloyd attend this meeting, takes notes, and report their observations to him.

 Yottes, who had been hired by Robert Martin Corporation to perform public relations work and services with respect to the development of Tarrygreen, taped a rebroadcast of the Jeffers' review, and gave a transcript of it to either Berger or Weinberg. In order to promote the acceptance of Tarrygreen, Berger reprinted and distributed the review, along with an additional portion entitled "Ms. Guitar quotes," *fn3" at a public hearing on rezoning on December 20, 1972. The "Ms. Guitar quotes" was apparently culled from Property Power, from the notes taken at the December 13 meeting, and from a magazine article which referred to plaintiff and her writings.

 Contentions of the Parties

 In the second amended complaint plaintiff asserts, as a first cause of action, a claim of defamation against the Robert Martin Corporation, Weinberg, Berger and Yottes based on the republication of the Jeffers' review and the "Ms. Guitar quotes" addition; as a second cause of action, a claim of defamation against Electric, Broadcasting, Jeffers and Yottes based on the original broadcast; and, as a third cause of action, a claim of conspiracy by all defendants to violate various sections of the Federal Communications Act. In the second action against Schneider and Lloyd, plaintiff asserts a claim of defamation based on the republication of the review and a claim based on the same conspiracy. The ad damnum clauses in the two actions are identical, demanding two million dollars in compensatory damages and three million dollars in punitive damages, together with costs and disbursements.

 All defendants move for summary judgment pursuant to Rule 56, F.R.Civ.P., on the same grounds: (1) as to the defamation claims, that the publications are not libelous on their face, and hence are not actionable as a matter of law; that the publications are critical reviews and comment, protected by the fair comment privilege; or that the publications are protected by a constitutional privilege; (2) as to the conspiracy claims, that no private right of action exists for alleged violations of the Communications Act of 1934.


 A comparison of the parties' 9(g) statements, submitted in accordance with local rule, reveals, at best, that only immaterial facts are in dispute. Accordingly, the motions for summary judgment are well pleaded. See American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967), cert. denied, 404 U.S. 1063, 92 S. Ct. 737, 30 L. Ed. 2d 752 (1972); Empire Electronics Co. v. United States, 311 F.2d 175, 180 (2d Cir. 1962).

 The Defamation Claims

 While the law of libel is a limitation on the right of citizenry to speak or write freely, it "recognizes fair comment as a complete defense to a charge of a libelous publication." Julian v. American Business Consultants, Inc., 2 N.Y.2d 1, 7, 155 N.Y.S.2d 1, 7, 137 N.E.2d 1, 5 (1956). *fn4" When an author submits his work to the public, "he [is] bound to expect, with equal equanimity, praise or blame directed at the work itself." Berg v. Printers' Ink Publishing Co., 54 F. Supp. 795, 797 (S.D.N.Y.1943), aff'd on opinion below, 141 F.2d 1022 (2d Cir.1944). The author invites criticism, "and no matter how hostile such criticism may be, the critic enjoys a privilege to make such critical comments as long as the comment does not go beyond the published work itself to attack the author personally," Buckley v. Vidal, 327 F. Supp. 1051, 1052-53 (S.D.N.Y.1971); Berg, supra; Triggs v. Sun Printing and Publishing Ass'n, 179 N.Y. 144, 71 N.E. 739 (1904); the facts are truly stated, Berg, supra; the comment is fair, Buckley, supra; Berg, supra; Triggs, supra; and the comment is an honest expression of the writer's real opinion, Buckley, supra; Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, Inc., 260 N.Y. 106, 183 N.E. 193 (1932).

 By publishing Property Power and other articles, and appearing and speaking at public meetings, plaintiff had to expect public attention. The assertion that the review and its subsequent republication with the "Ms. Guitar quotes" addition was an attack on her personally is groundless, "except so far as any criticism of a work of art must necessarily imply a criticism of its author. . . . [Such] necessary implications of comments directed at the work itself are not sufficient to turn otherwise protected criticism into unprotected criticism." Buckley, supra, 327 F. Supp. at 1053. "Such criticism usually implies some criticism of the author; and though his private character is no more subject to attack than another's, the qualities which he has shown by what he has published are open to such analysis and comment as an honest and intelligent man might make." See Berg, supra, 54 F. Supp. at 797. *fn5"

 The requirement that the facts be truly stated is not applicable to the disputed review, since those portions alleged to be defamatory are not statements of fact. Rather, they can only be characterized as expressions of opinion. *fn6"

 The claim that the full title of the book was intentionally omitted for the purpose of misrepresenting its true nature and content is specious. First, it is not all clear that the phrase "How to Keep the Bulldozer, The Power Line, and the Highwaymen Away From Your Door" is actually part of the title. Property Power is the only title printed on the hardcover, inside page, page following the preface, and side, back and inside cover of the jacket. The "How to" portion is printed on the face of the jacket, and on the title page, but not in any manner which clearly indicates that it is a part of the title. *fn7" Second, the cases cited by plaintiff to support the assertion that the publication misrepresented the nature of the book are inapposite; in those cases defamation was found where a publication was falsely stated to have been written by the plaintiff and where the publication itself held plaintiff up to ridicule and contempt or injured him in his professional reputation. See Ben-Oliel v. Press Publishing Co., 251 N.Y. 250, 167 N.E. 432 (1929); D'Altomonte v. New York Herald Co., 154 App.Div. 453, 139 N.Y.S. 200 (1st Dep't), modified without opinion, 208 N.Y. 596, 102 N.E. 1101 (1913); Clevenger v. Baker Voorhis & Co., 8 N.Y.2d 187, 203 N.Y.S.2d 812, 168 N.E.2d 643 (1960); Carroll v. Paramount Pictures, Inc., 3 F.R.D. 95 (S.D.N.Y.1942).

 The "Ms. Guitar quotes" addition *fn8" presents some difficulty since that phrase does imply that the "quotes" are actual and accurate quotations. However, the "quotes" come substantially from the book, from statements made by plaintiff in public meetings, and from a magazine article referring to plaintiff's writings. *fn9" Thus the requirement that the facts be "truly stated" is met. That the "quotes" are not word-for-word -- indeed they are modified on occasion -- nor always complete, does not make them facts not "truly stated." As the New York Court of Appeals said in Briarcliff Lodge Hotel, supra:


"And a fair and true report admits of some liberality; the exact words of every proceeding need not be given if the substance be substantially stated. . . . Mere exaggeration, slight irony, or wit, or all those delightful touches of style . . . do not push beyond the limitations of fair comment. Facts do not cease to be facts because they are mixed with the fair and expectant comment of the story teller, who adds to the recital a little touch by his piquant pen." 260 N.Y. at 118-19, 183 N.E. at 197. *fn10"

 As to the essential that the comment be fair, the New York Court of Appeals has stated:


"The comment must be fair. It must be a reasonable inference from the facts truly stated. . . We have held that even in the absence of admission as to the truth of the facts, it is sufficient if the facts form a reasonable basis for inference and the comment connected with the facts. . . . Under the rule of fair comment even if the publication holds one up to public ridicule, contempt and reproach or prejudices one in his opportunity to earn a living, nevertheless it is not actionable if facts form a reasonable basis of inference." Julian, supra, 2 N.Y.2d at 7-9, 155 N.Y.S.2d at 7-9, 137 N.E.2d at 5.

 Courts in this district have clearly indicated, in judging fair comment, that "the latitude allowed the critic in this area is quite large." Buckley, supra, 327 F. Supp. at 1053. In Berg, the court held:


"The criticism need not express an opinion with which any person of reasonable intelligence and judgment could possibly agree. Unlike a personal attack upon a public man, the fact that the comment or criticism is one which is not reasonably warranted by the facts upon which it is based or is fantastic or extravagant, is immaterial. If the public is to be aided in forming its judgment upon matters of public interest by a free interchange of opinion, it is essential that honest criticism and comment, no matter how foolish or prejudiced, be privileged." 54 F. Supp. at 797.

 More recently, the court in Buckley added the gloss "whether [the] comments are so obviously without basis in fact as to be adjudged unfair or dishonest." 327 F. Supp. at 1054. Thus the challenged portions of the review must be measured against the content of the book.

 Property Power describes the various tools which can be successfully utilized to keep land developers, utilities, and highways "away from your door"; the door generally being the rural and suburban areas which ring the cities. Essentially it deals with means of preventing or curbing unrestrained growth and development to the detriment of the homeowner, property owner, and community. The evils to be battled include unregulated growth in housing, population and industry. A necessary result of the implementation of land trusts, land use controls and open space programs is the unavailability of land for newcomers; in this sense the book does advocate "keeping others out," and specific passages support Jeffers' comments and opinions, *fn11" though his opinions need not be any with "which any person of reasonable intelligence and judgment could possibly agree." Berg, supra, 54 F. Supp. at 797. As a matter of law I find that the review is a reasonable comment on the content of the book, and is fair. *fn12"

 The final element to be considered is whether the comment is an honest expression of the writer's real opinion. Essentially, this raises the issue of malice, which, if found, vitiates the privilege of fair comment. Briarcliff Lodge Hotel, supra; Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95, 172 N.E. 139 (1930); Goldwater v. Ginzburg, 261 F. Supp. 784 (S.D.N.Y.1966), aff'd, 414 F.2d 324 (2d Cir. 1969), cert. denied, 396 U.S. 1049, 90 S. Ct. 701, 24 L. Ed. 2d 695 (1970).

 Contrary to plaintiff's allegation of malice, a careful reading of the affidavits, depositions and exhibits filed here show that plaintiff has not raised a disputed genuine issue of material fact as to malice. In opposing a motion for summary judgment, plaintiff has the burden of producing specific facts, admissible in evidence, which show that there is a genuine issue for trial. *fn13"

 Though complete and exhaustive depositions have been taken, plaintiff has not satisfied that burden. Instead, plaintiff has come forward with only unsupported speculation, opinion and surmise -- none of which is sufficient to defeat a well-grounded motion for summary judgment. Daily Press, Inc. v. United Press International, 412 F.2d 126, 134 (6th Cir.), cert. denied, 396 U.S. 990, 90 S. Ct. 480, 24 L. Ed. 2d 453 (1969); Wilson Jones Co. v. Gilbert & Bennett Manufacturing Co., 332 F.2d 216, 219 (2d Cir. 1964); Meeropol v. Nizer, 381 F. Supp. 29, 32, 35 (S.D.N.Y.1974); Konigsberg v. Time, Inc., 312 F. Supp. 848, 853-54 (S.D.N.Y.1970); Flintkote Co. v. United States, 47 F.R.D. 322, 324 (S.D.N.Y.1969), cert. denied, 402 U.S. 944, 91 S. Ct. 1619, 29 L. Ed. 2d 112 (1971). Some of the more egregious assertions in plaintiff's affidavit include the following: that Jeffers is not a bona fide book reviewer because he buys his books rather than receiving them free from publishers, Guitar affidavit, PP 37, 38; that Jeffers was promoting books for publishers, rather than being a legitimate reviewer, because only eight of sixty-five books reviewed were on bestseller lists and because he utilized taped material which "had to have come from the publishers," Id. PP 39-41; that Jeffers did not review books on their merits because only one other book, in addition to Property Power, was published by Doubleday, while three other reviews in a one-month period concerned books of a smaller publisher, Id. P 42; that if Jeffers would take "payola" to promote books, he would take "payola" to hurt plaintiff, Id. P 41; and that the Jeffers' review was initiated by one of the Robert Martin defendants, though whether "Jeffers was paid for his fake 'book review' or whether he did it as a favor for Yottes, I do not and cannot know." Id. P 46. *fn14"

 Defendants are entitled to summary judgment where the alleged defamation constitutes fair comment and plaintiff fails to set forth evidentiary facts, which would warrant a trial, to support the allegations that defendants were motivated by malice. Cole Fisher Rogow, Inc. v. Carl Ally, Inc., 25 N.Y.2d 943, 945, 305 N.Y.S.2d 154, 155, 252 N.E.2d 633 (1969). Summary judgment is not defeated by charges based upon surmise, conjecture and suspicion, Shapiro v. Health Insurance Plan of Greater New York, 7 N.Y.2d 56, 62, 194 N.Y.S.2d 509, 515, 163 N.E.2d 333 (1959); Trails West, Inc. v. Wolff, 32 N.Y.2d 207, 221, 344 N.Y.S.2d 863, 873-74, 298 N.E.2d 52 (1973); particularly where there has been full opportunity for discovery, Stillman v. Stillman, 22 N.Y.2d 48, 54, 290 N.Y.S.2d 893, 898, 238 N.E.2d 304 (1968); see also Modern Home Institute, Inc. v. Hartford Accident and Indemnity Co., 513 F.2d 102, 109-110 (2d Cir., 1975).

 The "rule" that summary judgment should be reluctantly granted where state of mind is at issue should not dissuade the court from its duty to grant such relief where no material fact issue exists, *fn15" see, e. g., Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 967-68 (1966), cert. denied, 385 U.S. 1011, 87 S. Ct. 708, 17 L. Ed. 2d 548 (1967); the question of malice is for the jury only when evidence exists warranting that issue's submission to that body, Shapiro, supra, 7 N.Y.2d at 60, 194 N.Y.S.2d at 513, 163 N.E.2d 333; Buckley, supra, 327 F. Supp. at 1054. The mere hope of putting defendants' witnesses' credibility in issue at trial is not enough to withstand a motion for summary judgment. Koningsberg, supra, 312 F. Supp. at 853; Hurley v. Northwest Publications, Inc., 273 F. Supp. 967, 974 (D.Minn.1967), aff'd on opinion below, 398 F.2d 346 (8th Cir. 1968); Trails West, supra, 32 N.Y.2d at 221, 344 N.Y.S.2d at 873, 298 N.E.2d 52; Buckley, supra, 327 F. Supp. at 1055. Moreover, because of the importance of free speech, summary judgment is the "rule," and not the exception, in defamation cases. *fn16"

 The two cases proffered by plaintiff as support for the inappropriateness of summary judgment are inapplicable here. In both Goldwater, supra, and Guam Federation of Teachers v. Ysrael, 492 F.2d 438 (9th Cir. 1974), the courts took care to note that ordinarily the grant of summary judgment in defamation cases is necessary to protect First Amendment rights, 414 F.2d at 337 n. 21; 492 F.2d at 441. In Goldwater, the Second Circuit emphasized the proof from which a jury could infer malice, 414 F.2d at 336-37; in Guam, the Ninth Circuit reversed a directed verdict for defendant, finding that the lower court erred in passing on the credibility of witnesses and for choosing among competing legitimate inferences, 492 F.2d at 441. Here, no proof has been presented from which a jury could infer malice; nor are there any competing legitimate inferences that could properly be drawn in plaintiff's favor.

 Whether proof of actual malice exists is an issue for the court to decide on a motion for summary judgment; a showing of malice may not be presumed but must be proved. Fram v. Yellow Cab Co., 380 F. Supp. 1314, 1335 (W.D.Pa.1974). Plaintiff has not satisfied this burden; accordingly summary judgment as to the defamation claims is granted to all defendants. *fn17"

 Constitutional considerations mandate the same result. It seems clear that Ms. Guitar is a "public figure" within the meaning of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974):


"For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. . . . More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. . . . [They] invite attention and comment." Id. at 345, 94 S. Ct. at 3009.

 Plaintiff would thus have to prove with convincing clarity that the alleged libelous review and republication were made with "malice," that is, with knowledge of their falsity or with reckless disregard for the truth or falsity of the review and republication. Id. at 342. Since plaintiff has presented no evidence giving rise to an issue of fact as to whether malice actually existed, summary judgment as to the defamation counts is granted on First Amendment grounds as well. See, e. g., Thompson v. Evening Star Newspaper Co., 129 U.S.App.D.C. 299, 394 F.2d 774, 776, cert. denied, 393 U.S. 884, 89 S. Ct. 194, 21 L. Ed. 2d 160 (1968); Hurley, supra, 273 F. Supp. at 974; Koningsberg, supra, 312 F. Supp. at 853; Trails West, supra, 32 N.Y.2d at 221, 344 N.Y.S.2d at 873, 298 N.E.2d 52.

 Conspiracy to Violate the Communications Act

 The third cause of action is premised on a purported conspiracy to violate 47 U.S.C. §§ 317, 501, 502, 503, and 508 of the Federal Communications Act of 1934, as amended. *fn18" The basis for motions in respect of this claim is that no private right of action exists for alleged violations of the Act. For reasons stated herein, the motions for summary judgment are granted.

 The sections of the Act concern certain disclosure and announcement requirements which a radio station has to make when payments are received for the broadcast of any matter over the station; penalty and forfeiture provisions, enforceable by the government and the F.C.C., are provided for violations of the Act. However, the Act provides no statutory basis for a private right of action; it was enacted for the benefit of the public interest in communications and did not fashion new private rights. Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S. 4, 14, 62 S. Ct. 875, 86 L. Ed. 1229 (1942).

 The Act did not create, even by implication, a cause of action cognizable in the district courts, Daly v. West Central Broadcasting Co., 201 F. Supp. 238, 240-41 (S.D.Ill.), aff'd sub nom., Daly v. Columbia Broadcasting System, Inc., 309 F.2d 83 (7th Cir. 1962), the court's sole function being the review of final orders of the F.C.C., Ackerman v. Columbia Broadcasting System, Inc., 301 F. Supp. 628, 631 (S.D.N.Y.1969), after the plaintiff has invoked the primary and exclusive jurisdiction of that commission, Gordon v. National Broadcasting Co., 287 F. Supp. 452, 455 (S.D.N.Y.1968). The district courts have entertained original jurisdiction in actions brought by the government to exact a forfeiture or penalty, see, e. g., United States v. Vega, 447 F.2d 698 (2d Cir. 1971), cert. denied, 404 U.S. 1038, 92 S. Ct. 712, 30 L. Ed. 2d 730 (1972); United States v. Midwest Radio-Television, Inc., 249 F. Supp. 936 (D.Minn.1966); United States v. WHAS, Inc., 253 F. Supp. 603 (W.D.Ky.1966), aff'd, 385 F.2d 784 (6th Cir. 1967), but have not done so in private suits, see Daly, supra, 309 F.2d at 85-86; Gordon, supra, 287 F. Supp. at 455; Ackerman, supra, 301 F. Supp. at 631-32.

 The contention that a private civil cause of action arises under these sections by implication is meritless, since the statute, legislative history and relevant cases refute any claim that Congress intended to protect a "specific class," as opposed to protection for the public generally. See H.R.Rep.No. 2148, 86th Cong. 2d Sess. Appendix C, 2 United States Code Congressional and Administrative News at p. 3541 (1960); Scripps-Howard, supra; Ackerman, supra; Gordon, supra; Daly, supra; Communist Party v. SACB, 96 U.S. App.D.C. 66, 223 F.2d 531, 556 (1954), rev'd on other grounds, 351 U.S. 115, 76 S. Ct. 663, 100 L. Ed. 1003 (1956); Noerr Motor Freight, Inc. v. Eastern Railroad Presidents Conference, 155 F. Supp. 768, 828 (E.Pa.1957), aff'd, 273 F.2d 218 (3d Cir. 1959), rev'd on other grounds, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961); cf. Reitmeister v. Reitmeister, 162 F.2d 691 (2d Cir. 1947).

 Defendants are granted summary judgment dismissing the second amended complaint, with costs and disbursements of this action.

 So ordered.

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