Appeal from a judgment of the District Court for the Southern District of New York, Constance Baker Motley, Judge, dismissing an action for libel on the ground that the allegedly defamatory article was "constitutionally protected as a matter of law" as a mere statement of opinion. Reversed and remanded.
Before Friendly and Meskill, Circuit Judges, and Thomsen, District Judge.*fn*
In this action in the District Court for the Southern District of New York, 486 F. Supp. 368,*fn1 Vincent A. Cianci, Jr. complained of alleged libels printed in the July 24, 1978 issue of "New Times" magazine. Cianci had been Mayor of Providence, R.I., and at the time of the publication was seeking reelection, which he won. The defendants were New Times Publishing Co. and New Times Communications Corp., which owned and circulated New Times; MCA, Inc., which allegedly dominated and controlled them; and three individuals, to wit, the publisher and the editor of New Times and the author of the article.
The cover of the July 24, 1978 issue of New Times bore a photograph identified as "Vincent "Buddy' Cianci Mayor of Providence, R.I." and a legend reading:
Was this man accused of raping a woman at gunpoint 12 years ago? by Craig Waters.
The article itself carried a headline in large and heavily blacked type:
followed by five lines, also in bold face and larger than normal type:
Twelve years ago, in a suburb of Milwaukee a law student was accused of raping a woman at gunpoint. After receiving a $3,000 settlement, she dropped the charges and the incident was nearly forgotten. That student, Vincent "Buddy" Cianci, Jr., is now the mayor of Providence, Rhode Island.
The article stretched over seven pages. Interspersed with the text were four boxes, also in bold face and larger than normal type, highlighting passages from the article. One of these inner headlines asserted:
Redick took the lie detector test and passed; Cianci took it three times and failed each time.*fn2
Redick has confirmed her account, and says that she did receive a $3,000 payoff.
After some preliminaries, the article quoted liberally from a statement allegedly made by Redick to the article's author in 1978, relating in detail what she claimed to have taken place on the evening of March 2, 1966. In summary, she reported that while she was walking home from work in Milwaukee, Wisconsin, she was picked up by a man, subsequently identified as Cianci, driving a big black car. Cianci called her by name, stating that he knew a friend who worked with her, and asked if she wanted to do some part-time work for the Marquette Law School, where he was a student. Redick's first reaction was negative; she said she had to go to the studio club where she resided and change her clothes. While doing this, she changed her mind and so informed Cianci who had sat in his car for half an hour while she was in the studio club. The two took off in the car. When Redick asked why the journey to the office was taking so long, Cianci answered that his office was in his home in River Hills, a suburb of Milwaukee. The house did contain an office "like a study or den . . .". Cianci offered her a drink, "a rum and Coke", which she accepted. Afterward she felt "like I was drugged." Cianci then "started coming toward me, and trying to kiss me and trying to make out with me." After some conversation Cianci pulled her into the bedroom; Redick countered with a threat to call the police. Cianci then threatened her with a gun, taken from a drawer in a nightstand by the bed, and also threatened to throw her into a ravine outside the window. As the article quoted Redick, "I couldn't fight him off any longer . . . and he raped me." Ultimately, when Cianci went to the bathroom, Redick called a cab. When the driver arrived, Cianci "acted very cool", saying "We had a wonderful time, and I'll call you . . . We'll go out to dinner sometime."
After passing out at the studio club and then sleeping there, Redick told the story to an unidentified friend. The police were notified. Redick went to the police station at River Hills, was examined by a physician with unstated results, spoke to the police, filed a written complaint and "was grilled by authorities for more than 14 hours." On the morning of March 4 she was asked to identify Cianci. The confrontation occurred in a judge's chambers. Cianci assumed an attitude resembling that before the taxi driver, saying "Hi there!" Didn't we have a great time last night?" The next day Redick took an overdose of sleeping pills and was hospitalized for a brief period.
The State Crime Laboratory reported the finding of a pistol in operating mechanical condition and of three empty glasses which were examined for drug residue with negative results.*fn3 The report continued:
The bedsheet was examined for the presence of semen. Semen was identified chemically in one area and intact spermatozoa were also identified at that spot . . . Human blood was identified in small spots on the pillowcase and also on the sheet . . . Traces of blood were identified at the crotch area of the victim's panty girdle. The amount was insufficient for further tests.
The article continued to state as a fact that Redick took the lie detector test and passed, whereas Cianci took it three times and failed each time. This was followed by a quotation from a report by Harold Block, a River Hills police lieutenant in 1966:
The article proceeded with a statement by Redick that her attorney did not think she was well enough to go on with the case and told her "to drop the charges and settle out of court." It quoted her as saying she had received a settlement of $3,000 and went on to state that she withdrew her complaint and a decision was made that Cianci would not be charged sometime prior to June 29, 1966.*fn4 In what was characterized as his "final report", Block is alleged to have noted that District Attorney Hugh O'Connell felt that "due to lack of evidence, prosecution was almost impossible." Assistant District Attorney Boyle was stated to have explained recently that the lack of evidence stemmed from the fact that "(t)he victim, presumably the star witness, settled out of court, and would therefore probably not be willing to testify; and, at that time, the results of the lie detector tests were not admissible as evidence in Wisconsin."*fn5
The article then moved back to 1977, when a young Providence reporter went to work for a Milwaukee television station. She met one Alan D. Eisenberg, a controversial Milwaukee lawyer who had been a law school classmate of Cianci. Eisenberg allegedly had acted as a procurer of women for Cianci and had thought him to be the possible rapist described in a March 5, 1966 story in the Milwaukee Sentinel. Eisenberg said that, when he talked to Cianci, the latter replied that the report was "a shakedown" and he was having a local lawyer handle it. Eisenberg led the reporter to Block, who had become River Hills Chief of Police. He furnished them with a copy of what they believed to be Cianci's complete police file. Eisenberg and the reporter located Redick, now happily married. The article says she "confirmed her rape charge against Cianci and discussed the $3,000 settlement." Shaken by what the article described as the reporter's "hard-nosed techniques", Redick called her 1966 attorney who indicated he wanted no part of the case but did advise the reporter to drop the story. When the reporter again called Redick, the latter had hired a new attorney. The article alleged that, after intervention by Cianci's counsel, the new attorney wrote a letter to them saying that his client had no complaint with the way in which the case had been handled, and that Eisenberg and the reporter had obtained information from Redick by threat and intimidation.
After recounting the refusal of the Milwaukee and Providence television stations to broadcast the story, the article went on to tell how a female acquaintance of Eisenberg brought the story to the attention of several friends in the media. She found a receptive audience in Bert Wade, a reporter for the Providence Journal who, with a colleague, flew to Milwaukee, had dinner with Eisenberg and spoke to Block. They discovered that the police file was no longer available; Redick's attorney explained that the records were legally required to be destroyed at the complainant's request. Although the writer of the article later ascertained from Redick's lawyer that this had been requested, the article states, apparently quite gratuitously: "(The police file may, in fact, have been sealed by the village attorney, and not destroyed)." The reporters "checked out leads and sources the district attorney, the Milwaukee County medical examiner, the dean of Marquette Law School, Robert F. Boden." They then made plans for their story to be published on page one of the Sunday Providence Journal. Cianci declined to meet with a city hall reporter for the Journal, but a meeting was held between Cianci and his advisors and two editors and the paper's attorneys at which the former group claimed that Wade had made some demonstrably false accusations against Cianci in order to coax information from Dean Boden*fn6 and raised questions about the reliability of the paper's sources. When the editors returned, they informed the writer of the story that a serious problem had come up and that the story would not be running on Sunday. When the paper "learned that the victim might not cooperate in the event of a lawsuit, the plug was pulled and the last rites reluctantly read." After discussing the "ripple effect" of the Journal's refusal to publish, the article began its concluding portion by saying:
If, as it was once claimed, the entire matter was merely a shakedown, it was definitely of the nickel and dime variety: For the nominal sum of $3,000, Cianci had managed to buy his way out of a possible felony charge.
Unlike tryst-and-tell heroines Judith Exner and Elizabeth Ray, Redick hasn't attempted to capitalize on her experience. Since she was first caught off guard by Eisenberg and the television reporter, Redick has been reluctant to talk about the alleged rape. She has confirmed her account for several journalists and says that she did receive a $3,000 payoff, but doesn't want to discuss the details. The reticence seems borne not of moral doubt "I have . . . daughters, and one day ...