The opinion of the court was delivered by: LOWE
Plaintiff brought this libel action under the diversity jurisdiction of this Court.
He alleges that the defendant American Broadcasting Companies, Inc. ("ABC") televised a documentary entitled the American Inquisition which defamed him in his profession.
Defendant moves to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) contending that the privilege of neutral reportage ennunciated in Edwards v. Audubon Society, Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S. Ct. 647, 54 L. Ed. 2d 498 (1977) is applicable and in the alternative that the documentary did not defame plaintiff.
On June 23, 1983, defendant aired a one hour ABC News "Closeup" documentary entitled "The American Inquisition", ("the Program"), which focused on the stories of Americans caught up in the McCarthy era of the 1950's.
Divided into two segments, the Program, in its second half, told the story of the effects of McCarthyism on the town of Fairmont, West Virginia, and its former resident, a Ms. Luella Mundel. In the Program, Ms. Mundel stated that in the early 1950's she was accused of being a security risk and an atheist by the president of the local school board and as a result of these charges, she lost her job as the head of the art department of the local state college. Other persons interviewed on the Program recalled that during this period, the local American Legion held "anti-subversive" meetings in Fairmont that incited people against communism.
Plaintiff, a well known lecturer and writer,
attended an American Legion meeting held in Fairmont in 1951. Plaintiff stated on the Program, that at this meeting he gave his usual talk about the dangers of communist infiltration, but that he also advised that the public should not get hysterical about the problem. Ms. Mundel also attended this meeting. Plaintiff stated that during the meeting Mundel stood up and hysterically assailed him; and that he responded to this verbal assault by trying to calm her down.
The next speaker on the Program was Newton Michael, who was identified as an American Legionnaire who also attended the 1951 meeting. Mr. Michael stated that:
As I recall, Mr. Lasky called her a communist. This seemed to agitate her very much, and she called him a Nazi. And with that he became very, to me, very angry, and she became angry also."
The Program continued with the recollections of several people about the mood in Fairmont in February 1951 and the events that occured therein. William Manchester, the historian, commented on what had happened to Ms. Mundel in Fairmont and following a commercial bread, Mr. Manchester continued as follows:
Tagged as a Red, she couldn't find a job anywhere. She was running out of money. And in desperation she filed suit for slander against the woman who had called her a secuity [security] risk....
Near the Program's conclusion, plaintiff again appeared on camera and stated:
I have no feeling one way or the other. I feel sorry for her. I feel sorry for her very much. I mean, I didn't have nothing to do with it. I didn't ask her to come to the meeting. I didn't ask her to shoot off her mouth. I have no idea why she was there. She was there with a claque and she rather enjoyed being Joan of Arc. I don't - I didn't set the fire to Joan of Arc.
On July 16, 1983 ABC aired the following:
MARSHALL FRADY: I'm Marshall Frady for ABC News Closeup. We have a correction to make involving our recent documentary called THE AMERICAN INQUISITION about the legacy of the McCarthy era. In one segment, a participant recalled that at a public meeting author Victory Lasky had called a West Virginia college professor, Luella Mundel, a Communist. While we did broadcast Mr. Lasky's general recollection of the meeting, we omitted his specific denial that he had called Miss Mundel a Communist.
VICTOR LASKY: I did not label her a Communist. I never did. And I don't think she would have told you that I did. Or did she? I never labeled her anything. I can't believe I would have labeled her anything - because I ...