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November 12, 1975

A. E. HOTCHNER, Plaintiff,
Jose Luis CASTILLO-PUCHE and Doubleday & Company, Inc., Defendants. DOUBLEDAY & COMPANY, INC., Defendant and Third-Party Plaintiff, v. Ediciones DESTINO S. L., Third-Party Defendant

The opinion of the court was delivered by: BRIEANT


 BRIEANT, District Judge.

 In this diversity action filed December 17, 1974 to recover damages for libel and invasion of privacy, defendant Doubleday & Company, Inc. (hereinafter "Doubleday") has moved for summary judgment dismissing the complaint as to it "upon the ground that the statements complained of in the complaint are about a public figure and were not published by Doubleday with knowledge of their falsity or with reckless disregard of the truth thereof, and are therefore constitutionally privileged."

 Plaintiff A. E. Hotchner ("Hotchner") is an author and was a friend and sometime companion of the late Ernest Hemingway. Defendant Jose Luis Castillo-Puche ("Puche"), a resident of Spain, wrote a book in Spanish entitled Hemingway Entre la Vide y la Muerte (hereinafter "the book" or "the Spanish Edition"), which was published in Spain in 1968 by third-party defendant Ediciones Destino S.L. ("Destino"). Plaintiff is referred to in a generally uncomplimentary fashion in the Spanish Edition and, for purposes of this motion, defendant concedes that these unfavorable characterizations are not truthful, and that the toned down English version also defames him.

 The Spanish Edition came to the attention of Doubleday. On May 18, 1970, after having it read and reviewed by knowledgeable persons, Doubleday purchased the English language rights to the book from Destino. Doubleday caused the book to be edited, translated, prepared for publication, printed and sold in the United States. On this publication, which took place in New York, plaintiff bases this action. Counsel agree that New York law applies.


 Both Puche and Hotchner were friends of Hemingway and each claims to have been well acquainted with Hemingway's life and thoughts in the years immediately prior to his death in 1961. Hotchner is the author of a book entitled Papa Hemingway, A Personal Memoir, which was serialized in an American magazine in March and April, 1966 and published in the United States immediately thereafter with a substantial degree of commercial success.

 Defendant contends that Hotchner is a public figure and, therefore, the standard applicable to plaintiff's claims is that first enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). There, it was held, on First Amendment grounds, that a public official may recover damages for libel only if the defamatory publication "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 279-80, 84 S. Ct. at 726. The scope of this protection was extended in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), where the New York Times standard was applied to plaintiffs in defamation actions who were "public figures," although they did not hold public office.

 The "public figure" doctrine was reaffirmed in words in Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-43, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), but the range of its application has been left cloudy. In defining the class of plaintiffs whose claims are limited by the New York Times rule, the Supreme Court in Gertz used language which appears simple enough: "those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures . . .." 418 U.S. at 342, 94 S. Ct. at 3008. Gertz further held that designation as a public figure

"may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions." 418 U.S. at 351, 94 S. Ct. at 3013.

 Although readily articulated, these standards pose difficulties in their application, as evidenced by the Gertz decision itself. Without reviewing the facts of the Gertz case in detail, the Supreme Court there treated as a "private citizen," as contrasted with a "public figure," a prominent attorney who had involved himself in civil litigation against a policeman, brought by the family of a murdered youth to recover money damages for wrongful death. The policeman had been convicted of murder in the second degree. The civil case, closely related to a criminal prosecution, and the motives of those bringing it, as well as its possible chilling effect on future police action would seem clearly within the area of protected First Amendment activities, "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people" (Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1308, 1 L. Ed. 2d 1498, quoted with approval in New York Times Co. v. Sullivan, supra at 269, 84 S. Ct. at 720 [1964]). *fn1"

 In addition to injecting himself voluntarily into this area of public controversy, Gertz had achieved some public prominence in his own right. He had served as an officer of the National Lawyers Guild, and had "considerable stature as a lawyer, author, lecturer, and participant in matters of public import" [fn. 3 of Gertz, p. 330 of 418 U.S. p. 3002 of 94 S. Ct. quoting from the opinion below, 471 F.2d 801, 805].

 Perhaps if attorney Gertz was not a public figure, nobody is. *fn2" But at least the Gertz Court in words reaffirmed the New York Times principle.

 Under New York law, "the decision as to whether, under the circumstances, a privilege exists, is for the court and not the jury." Duffy v. Kipers, 26 App.Div.2d 127, 271 N.Y.S.2d 338, 341 (4th Dept. 1966) (governmental officer acting within scope of official duties). See also, Phillips v. Murchison, 252 F. Supp. 513 (S.D.N.Y.1966), aff'd. in relevant part, rev'd. in other parts, 383 F.2d 370 (2d Cir. 1967) (privilege accorded reports of judicial proceedings); Cheatum v. Wehle, 5 N.Y.2d 585, 594, 186 N.Y.S.2d 606, 612, 159 N.E.2d 166 (1959) (fair comment); 2 E. Seelman, The Law of Libel and Slander in New York. para. 592.

 In Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S. Ct. 669, 677, 15 L. Ed. 2d 597 (1966), the Supreme Court instructed the trial court upon retrial "that, as in the case with questions of privilege generally it is for the trial judge in the first instance to determine whether the proofs show [plaintiff] to be a 'public official.'" Whether a party is a "public official" is more readily ascertainable than whether he is a public figure, and is a fact upon which it is unlikely that reasonable minds could differ. However, the cases appear to authorize this Court to determine whether Hotchner is a "public figure," just as we would determine whether another plaintiff is a "public official."

 We further note that the amended complaint states as a second claim for relief an invasion of plaintiff's statutory right of privacy under N.Y. Civ. Rights Law § 51. Construing this statute in light of the New York Times standard, Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967) held that the First Amendment barred recovery for "false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." See Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S. Ct. 465, 542, 42 L. Ed. 2d 419 (1974). Whether a matter is of "public interest" and provides its author and publisher with this qualified privilege is likewise an issue for the court's determination. Man v. Warner Bros., Inc., 317 F. Supp. 50 (S.D.N.Y.1970). See also Gordon v. Random House, Inc., 486 F.2d 1356 (3d Cir. 1973), vacated, 419 U.S. 812, 95 S. Ct. 27, 42 L. Ed. 2d 39 (1974); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970); Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 424 F.2d 920, cert. denied, 398 U.S. 940, 90 S. Ct. 1844, 26 L. Ed. 2d 273 (1970). But see, Taggart v. Wadleigh-Maurice, Ltd., 489 F.2d 434 (3d Cir. 1973), cert. denied, 417 U.S. 937, 94 S. Ct. 2653, 41 L. Ed. 2d 241 (1974).

 Although the issue of whether a plaintiff in a defamation action is a public figure poses a mixed question of law and fact, it is nevertheless one for the Court, not the jury, to determine.

 In Montandon v. Triangle Publications, Inc., 45 Cal.App.3d 938, 120 Cal. Rptr. 186, cert. denied, 423 U.S. 893, 96 S. Ct. 193, 46 L. Ed. 2d 126 (1975), the Court held that an author who made promotional appearances on radio and television was "a public figure and a person of general newsworthiness," finding it unnecessary to detail the evidence which supported this conclusion. Without referring to the Gertz decision, the Court adopted the definition of a public figure pronounced in Cepeda v. Cowles Magazines and Broadcasting, Inc., 392 F.2d 417, 419 (9th Cir.), cert. denied, 393 U.S. 840, 89 S. Ct. 117, 21 L. Ed. 2d 110 (1968):

"'Public figures' are those persons who, though not public officials, are 'involved in issues in which the public has a justified and important interest.' Such figures are, of course, numerous and include artists, athletes, business people, dilettantes, anyone who is famous or infamous because of who he is or what he has done."

 Plaintiff Hotchner has written several novels and nonfiction books, as well as articles, short stories and original television plays. His work, Papa Hemingway, previously mentioned was his most successful. Papa Hemingway has sold at least six hardbound printings and ...

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