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CIANCI v. NEW TIMES PUBL. CO.

December 13, 1979

VINCENT A. CIANCI, JR., Plaintiff, against NEW TIMES PUBLISHING COMPANY, NEW TIMES COMMUNICATIONS CORP., MCA, INC., GEORGE A. HIRSCH, JONATHAN Z. LARSEN and CRAIG WATERS, Defendants.


The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

Defendants have moved, pursuant to Rule 12(b) and Rule 56 of the Federal Rules of Civil Procedure, for an order dismissing the complaint in this action.

 This libel action concerns the publication of an article about plaintiff Vincent "Buddy" Cianci in the July 24, 1978, issue of New Times magazine entitled, "Buddy We Hardly Knew Ya." Cianci was at the time of publication, and is presently, mayor of Providence, Rhode Island.

 On the cover of the July 24, 1978, issue of New Times is a picture of Cianci, and the caption "Was this man accused of raping a woman at gunpoint 12 years ago?" The description of the article in the contents page reads as follows:

 
Twelve years ago, Vincent A. Cianci, Jr., a Marquette University law student, was accused of raping a woman at gunpoint. The woman reportedly received a $ 3,000 settlement, charges were dropped, and indictment faded away. In 1974, running on an anticorruption platform, Cianci was elected mayor of Providence, Rhode Island the first Republican to hold the post in 35 years. Supporters have urged him to run for higher office, but Cianci's private past seems likely to influence his public future.

 On the first page of the article is a similar description of the article. Excerpts highlighted on subsequent pages of the article include: "If Cianci stays in Providence, he's probably safe. If he goes on to the state or federal level, then obviously it's going to come out." "Redick took the lie detector test and passed; Cianci took it three times and failed each time." "When the editors returned from their meeting with Cianci, they shunted the story to a high-security section of the computer." "Redick has confirmed her account and says that she did receive a $ 3,000 payoff."

 In fact, the article nowhere states that Cianci was indicted, officially charged, or guilty of the crime of rape as claimed by the "victim," a woman identified by the pseudonym of Gayle Redick. The article begins by discussing Cianci's performance as mayor of Providence. It then notes that Cianci had once been accused of raping a woman at gunpoint. The article discusses the specific charge by Redick, as well as Cianci's denial of the charge. The article then quotes Redick's account of the events of the night in question (including her contradictory accounts of how she first met Cianci), as well as the police reports prepared in connection with the investigation of the charges. The article discusses a $ 3,000 payment made to Redick by Cianci and inquires if this payment was made to obtain an agreement by her to drop all charges. The article also recounts how the story of the alleged rape became known to journalists, how the journalists conducted an investigation of the incident (including alleged improprieties by those journalists), and the effort of Cianci and his representatives to keep the story of the alleged rape from being published.

 The article concludes with the following paragraph:

 
Still, the questions hang in the air. Rape at gunpoint is too serious a charge to ignore, even if the victim who leveled it has long since tried to forget. Cianci himself, who is clearly aware of the story that has been circulating around Providence, has tried privately to stop it, but not publicly to explain it. And so, we'd like to ask once and for all, and on the record: Mayor Cianci, what did transpire that morning of March 2, 1966? It is a question that should be answered, and certainly before the night of November 7, 1978.

 Cianci has conceded the basic accuracy of many of the facts in the article either during the course of his deposition or in response to defendants' Notice to Admit. The parties have stipulated that Cianci's response to the Notice to Admit would be sealed; however, the parties were not prevented from making any appropriate use of or reference to any portion of the response in connection with the present motion and other proceedings before the court. In any event, for the purposes of deciding the present motion it is not necessary for the court to discuss in detail the admitted facts. It should suffice to note that Cianci vigorously disputes the accuracy of at least two of the "facts" in the article: that he failed his lie detector test three times and that Redick's account of the alleged rape as reported in the article is true.

 Legal Principles

 The starting point in analyzing any defamation action brought by a public official or public figure must be the fundamental First Amendment principles set forth by the Supreme Court in its seminal decision, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). See generally Hutchinson v. Proxmire, 443 U.S. 111, 133, 99 S. Ct. 2675, 2687, 61 L. Ed. 2d 411, 430 (1979); Wolston v. Reader's Digest Assoc., 443 U.S. 157, 162-165, 99 S. Ct. 2701, 2705-2706, 61 L. Ed. 2d 450, 457-58 (1979); Herbert v. Lando, 441 U.S. 153, 155-57, 99 S. Ct. 1635, 1638-39, 60 L. Ed. 2d 115, 121-22 (1979). In New York Times v. Sullivan, the Court reaffirmed the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." 376 U.S. at 270, 84 S. Ct. at 721. The Court explained that freedoms of expression must have breathing space in order to survive. Id. at 271-72, 84 S. Ct. at 721. As has been subsequently noted, "(t)he very possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to "steer far wider of the unlawful zone' thereby keeping protected discussion from public cognizance." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52-53, 91 S. Ct. 1811, 1824, 29 L. Ed. 2d 296 (1971) (plurality). Accordingly, the Court in New York Times v. Sullivan held that the constitution 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. 376 U.S. at 279-80, 84 S. Ct. at 726.

 In the case at hand, it is beyond dispute that plaintiff Cianci is a public official within the meaning of New York Times v. Sullivan and its progeny. As a public official, anything which might touch on his fitness for office is relevant and protected in public discussion. Garrison v. Louisiana, 379 U.S. 64, 77, 85 S. Ct. 209, 217, 13 L. Ed. 2d 125 (1964). It is well-established "as a matter of constitutional law that a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 277, 91 S. Ct. 621, 628, 28 L. Ed. 2d 35 (1971).

 Public discussion regarding public officials such as Cianci merits careful protection under the First Amendment for several reasons. First, public officials such as Cianci "enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy." Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S. Ct. 2997, 3009, 41 L. Ed. 2d 789 (1974) (footnote omitted). Second, public officials such as Cianci have voluntarily become involved in public controversy. "An individual who decides to seek governmental office must ...


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