The opinion of the court was delivered by: OWEN
Plaintiff William Loeb brought this libel action against New Times Communications Corp. ("New Times "), publisher of New Times magazine, and two reporters, Robert Sam Anson and Gordon L. Weil. The subject of this suit is an article written by defendants Anson and Weil entitled "Citizen Loeb," which appeared in New Times magazine on January 10, 1975. The article is a profile of Loeb. It contains anecdotes and commentary by the authors and others which are uniformly critical of Loeb's personal characteristics and behavior, as well as his business practices and political views.
Loeb claims that at least twenty-three separate statements in the article are libelous, either directly or by implication and innuendo. Defendants contend that most of the statements cited in the complaint (Complaint P 10a-c, e, i-k, n, q, s, u, and w) are not libelous on their face and cannot be construed as libelous by implication or innuendo. The remaining statements (Complaint P 10d, f-h, l, m, o, p, r, t and v), defendants assert, are protected by the first amendment because they concern a "public figure," Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), and were published without "actual malice", New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 725-26, 11 L. Ed. 2d 686 (1964). For these reasons, the defendants have moved for summary judgment under Fed.R.Civ.P. 56.
The undisputed facts are as follows. Loeb is the publisher of a daily newspaper, the Manchester Union Leader ("Union Leader ") and a Sunday newspaper, the New Hampshire Sunday News, both widely circulated throughout New Hampshire.
Through these vehicles,
Loeb has earned the reputation, which he readily acknowledges, of being a controversial figure. Complaint PP 4-6. His outspoken criticism of prominent politicians and celebrities in diverse fields has frequently made him the target of national and regional media coverage.
Defendants' article focused on Loeb's role in the New Hampshire Presidential Primary, which, as the earliest state primary, enjoys nationwide publicity.
The authors' clear intent was to portray an overwhelmingly negative picture of Loeb by presenting purported examples of his ridiculous idiosyncracies and prejudices, shady political maneuverings, and dishonest reporting practices. At the same time, the article purports to be an accurate and well-documented account of Loeb and his activities.
The statements which Loeb claims are libelous by implication or innuendo may be briefly catalogued as follows.
The article describes the exterior of Loeb's home and the security devices he employs to protect it. Loeb claims that the innuendoes implicit in that description are that he is "a recluse in a fortress," whose "house pets are trained attack dogs assigned to patrol routes at plaintiff's residence," and that "Loeb lives abnormally in fear." Complaint P 10a-c.
Defendants report that Loeb was influential in eliminating the state sales and income taxes in New Hampshire. The authors conclude that the repeal of this legislation resulted in New Hampshire ranking 47th among the 50 states in aid to education and last in expenditures for mental health. Loeb contends that this implies that he is "opposed to education and proper care for the mentally ill," and is "responsible" for New Hampshire's poor record in aid to education and mental health programs. Complaint P 10e.
The article contains several statements attacking Loeb's editorial policies and practices.
According to Loeb, the defendants intend to convey the impression that he "advocates, authorizes and approves libelous publications," Complaint P 10i, and "uses his newspaper only to injure or destroy other persons," Complaint P 10j. The article quotes the Boston Globe's description of Loeb as "a near-Neanderthal," and his paper as "published by paranoids for paranoids." Loeb equates these epithets with an accusation that he and his employees suffer from a "serious mental disease or defect,"
Complaint P 10k, and that Loeb "through the use of his newspapers, controls and directs the State of New Hampshire and its citizens," Complaint P 10w.
Defendants report that Loeb's legal career "abruptly ended when he failed to make it through Harvard Law School." Loeb equates this statement with a representation that he was forced to leave law school because of academic failure when, in fact, he left voluntarily. Complaint P 10n.
The article contains an account of an incident in which the husband of a woman later to marry Loeb was assaulted in New York. The incident is reported in the context of a description of the conflict between the two men over the woman, and Loeb's efforts to pressure her husband into granting her a divorce. Loeb contends that the intended innuendo of this report is that he "hired thugs for an illegal purpose." Complaint P 10q.
The article refers to a "mysterious fire" which destroyed the printing plant of a newspaper in competition with Loeb's publications. Loeb argues that this suggests he was responsible for the fire and is an arsonist. Complaint P 10s.
Finally, defendants report that Loeb received a loan from the Teamsters' pension fund which "remained secret for several months until a reporter on a rival New Hampshire Daily discovered it." Loeb claims this implies that he "secretly secured a two million dollar loan and deliberately withheld such transaction from knowledge of the general public." Complaint P 10v.
The threshold question presented by Loeb's claim as to the statements described above is whether the innuendoes which allegedly flow from these statements are reasonable. Only if the statements could fairly be read to libel the plaintiff may defendants be held accountable for their publication. El Meson Espanol v. NYM Corp., 521 F.2d 737, 739-40 (2d Cir. 1975). Under New York law, applicable here, whether a publication is susceptible of a libelous interpretation is a question of law for the judge to resolve. Tracy v. Newsday, Inc., 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 155 N.E.2d 853 (1959). When making this determination, "the court will not pick out and isolate particular phrases but will consider the publication as a whole." James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834, 838 (1976) (citation omitted); see also Ladany v. William Morrow & Co., Inc., 465 F. Supp. 870 (S.D.N.Y.1978). Moreover, the innuendo alleged "may not enlarge upon the meaning of the words so as to convey a meaning that is not expressed." Tracy v. Newsday, Inc., supra, 5 N.Y.2d at 136, 182 N.Y.S.2d at 4, 155 N.E.2d at 855 (citation omitted).
Upon careful review, I find that the innuendoes which plaintiff derives from the statements discussed above, Complaint P 10a-c, e, i-k, n, q, s, u, and w, are "strained, unreasonable and unjustified," Tracy v. Newsday, Inc., supra at 137, 182 N.Y.S.2d 1, 155 N.E.2d 853, quoting Tracy v. Newsday, Inc., 160 N.Y.S.2d 152, 154 (Sup.Ct.1957), and therefore they cannot be properly attributed to the defendants. For example, the description of Loeb's home conveys no more than the reporters' impression of what they saw. In addition, the statement that Loeb "failed to make it through Harvard Law School" is literally true, since he did not graduate. The phrase is somewhat ambiguous since the reason Loeb did not finish law school is not given. Nevertheless, the ambiguity cannot be stretched to convey a meaning not expressed, i. e., that Loeb was forced to leave law school for academic reasons. Similarly, defendants' statement that the loan from the Teamsters' pension fund "remained secret," merely refers to the fact that the loan was not generally known to the public until the article about it was published in the Concord Monitor. Contrary to plaintiff's contention, it is irrelevant to the question of whether this statement was libelous that this information was in fact a matter of public record; defendants do not represent that Loeb deliberately tried to keep the information secret, but merely observed that the information had not been widely publicized.
A number of the more provocative statements are simply the authors' commentary on undisputed facts. They are editorial opinions which fall into the category of statements which "depend for (their) correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 3007, 41 L. Ed. 2d 789 (1974) (footnote omitted). See also Yiamouyiannis v. Consumers Union, 619 F.2d 932 at 941 (2d Cir. 1980). First, the defendants' statement that "(not) even libel seems to bother the Union Leader," is an opinion drawn from the fact that the newspaper was sued successfully for libel on a number of occasions. Second, the depiction of Loeb as having a "stranglehold on the life of an entire state," through his newspapers is commentary based on certain facts concerning the news media in New Hampshire, i. e., that the State has only one commercial television station, that the Union Leader is the only paper with statewide distribution, and that the New Hampshire Sunday News is the only Sunday paper published in the State. Third, the description of Loeb as a "near-Neanderthal" and of the Union Leader as a newspaper published "by paranoids for paranoids," cannot be construed as representations of fact. See note 8, supra. Finally, the same is true of the depiction of ...