81 A.D.2d at 131, 439 N.Y.S.2d 417 (Mollen, J., dissenting).
When the common usage of the challenged language can be
libelous due to extrinsic circumstances, plaintiff can bring an
action for libel per quod. See, e.g., Oliveira, 1997 WL
324042, at *8; Rogow, 29 A.D.2d at 426, 288 N.Y.S.2d 556. To
succeed on a per quod libel theory, a plaintiff would need to
show that the challenged language was capable of communicating
the alleged defamatory idea when words were given meaning not
ordinarily attributed to them or due to external factors. See
id. Thus, a plaintiff must innuendo to sustain a claim of libel
per quod. See, e.g., Oliveira, 1997 WL 324042, at *8; Rogow,
29 A.D.2d at 426, 288 N.Y.S.2d 556. Whether the allegedly
libelous language is capable of the libelous meaning charged by
innuendo is a matter of law for the courts to decide. See id.
Courts have not hesitated to find insufficient innuendo when
only a strained, unreasonable, unjustifiable innuendo of the
headline would support the plaintiff's contention that the
challenged language exposes her to "public shame, hatred, or
ostracism." Id. at 563. Furthermore, the plain and obvious
meaning of the challenged language cannot be altered or changed
by innuendo. See, e.g., Tracy, 5 N.Y.2d at 136, 182 N.Y.S.2d 1,
155 N.E.2d 853. In Tracy, the Plaintiff sued a newspaper
for reporting that he was the last person known to have had
contact with an alleged sex offender who fled the area and
failed to appear in court. See id. Plaintiff claimed the
article contained libelous innuendo that he had aided in the
escape. However, the court found that Plaintiff's interpretation
added "an entirely new and independent thought that [found] no
support in the article" and was not actionable. Id. at 137,
182 N.Y.S.2d 1, 155 N.E.2d 853.
To adopt the plaintiff's interpretation of the word "militant"
as referring to "revolutionary Socialism", (Pl.'s Ex. E, Resp.
to Defs.' 12(b)(6) Mot.) would not explain any statement in the
article, but would add "an entirely new and independent thought"
that finds no support in the body of the article. See Tracy, 5
N.Y.2d at 137, 182 N.Y.S.2d 1, 155 N.E.2d 853. Nothing in the
language of the article, plain or implied meaning, would subject
the plaintiff to contempt, aversion or affect him in his calling
as a criminologist or police instructor. See id. Nothing in
the story supports plaintiffs' reading of the word "militant" as
advocating the overthrow of the Government or being on the
lunatic fringe of society. The defamatory innuendo proposed by
plaintiffs does not clarify any statements in the article, but
instead injects new meaning into the story that the article does
not support. Thus, because nothing in the article would subject
them to hatred, contempt or aversion, the use of the word
"militant" in the headline would not do so.
In addition, plaintiffs' claim fails under a libel per quod
analysis because plaintiffs have failed to plead special
damages. Special damages consist of "the loss of something
having economic or pecuniary value which must flow directly from
the injury to reputation by defamation; not from the effects of
defamation." Matherson v. Marchello, 100 A.D.2d 233, 234,
473 N.Y.S.2d 998, 1001 (2nd Dept. 1984). When the loss of business
is claimed, persons who ceased to be customers must also be
named and the losses itemized. See id. "Round figures" or a
general allegation of a dollar amount as to special damages do
not suffice. See id. It is well settled law in New York that
special damages must be fully and accurately defined "with
sufficient particularity to identify actual losses." Id. In
all cases that are libel per quod, failure to plead special
damages is a fatal defect. See id.
In the instant case, plaintiff has not pleaded special
damages. Although he states generally how he has been affected
by the defendants' headline and article, he fails to identify
actual losses or name any individuals who have ceased to be his
customers due to the defendants' headline and
article. See Matherson, 100 A.D.2d at 234, 473 N.Y.S.2d 998;
(Compl. ¶¶ 27-30). He also fails to specify the amount of actual
damage he has suffered, relying instead on round figures, which
is not appropriate. See Matherson, 100 A.D.2d at 234,
473 N.Y.S.2d 998; (Compl. ¶¶ 67-71).*fn2
Finally, for a report to be characterized as "fair and true"
under section 74, it is enough that the substance of the article
and headline is substantially accurate. See Holy Spirit Ass'n
v. New York Times Co., 49 N.Y.2d 63, 67-68, 424 N.Y.S.2d 165,
399 N.E.2d 1185 (1979). Section 74 does not require that a
defendant report exact words or exact language. See Karp,
631 F. Supp. at 363. The challenged language of the headline and
article of an official proceeding, such as a judicial
proceeding, "should not be dissected and analyzed with a
lexicographer's precision", Becher v. Troy Publ'g Co., Inc.,
183 A.D.2d 230, 234, 589 N.Y.S.2d 644, 646 (3rd Dept. 1992)
(citations omitted), because a newspaper article and headline is
a condensed report of events. See id. For example, in
Becher, the content of the headlines considered in context of
the articles that followed warranted a conclusion that each
headline constituted a "fair and true headnote" of the article
published and therefore entitled to absolute immunity under
section 74. See id. at 237, 589 N.Y.S.2d 644. The Plaintiff in
Becher was an attorney who claimed his role in a rape case had
been misreported to imply that he had been indicted on felony
bribery charges, when in fact he had been charged only with
misdemeanors. See id. at 233, 589 N.Y.S.2d 644. The court
found that the alleged inconsistencies would not support a cause
of action because the Plaintiff was either a public figure or
the articles involved a matter of public convern. See id.
Narrow and confining application of libel laws would entirely
defeat the purpose of section 74, which was to encourage
dissemination of information regarding official proceedings to
make the public more aware. See id. at 232, 589 N.Y.S.2d 644.
To the extent that I might find that while the word "militant"
in the headline could be misleading to the reader, for the
purposes of section 74, any ambiguities and questions would have
been resolved by perusing the article. See Becher, 183 A.D.2d
at 237, 589 N.Y.S.2d 644. The article concerned a local judicial
proceeding, and it was substantially accurate. See Holy Spirit
Ass'n, 49 N.Y.2d at 67-68, 424 N.Y.S.2d 165, 399 N.E.2d 1185.
Additionally, though the word "militant" probably did not exist
anywhere in the written records of the judicial proceedings, and
is not a synonym for the sort of "paramilitary" operation that
Idema runs, any ambiguities created by the headline would be
resolved for the reader by perusing the article, which nowhere
describes Idema as a Communist or as someone on the lunatic
fringes of society who seeks to overthrow the Government.
Therefore, this headline is a "fair and true" headnote of the
article and is privileged under section 74. Karp, 631 F. Supp.
at 364; see also Becher, 183 A.D.2d at 237, 589 N.Y.S.2d 644.
Because plaintiffs have failed to satisfy the first element
needed to sustain a claim of libel under New York law, it is not
necessary to analyze any of the other elements. The first cause
of action is dismissed.
B. Civil Conspiracy
Plaintiffs' second cause of action seeks recovery on a civil
conspiracy theory. It, too, must be dismissed as a matter of
New York recognizes no independent cause of action for civil
conspiracy and putting a "conspiracy" label cannot revive flawed
defamation claims. For example, the Alexander & Alexander v.
Fritzen court held that:
The allegations of the first cause of action are not
sufficient. It purports to
allege a conspiracy but, as we long ago held, `a mere
conspiracy to commit a [tort] is never of itself a
cause of action.'
68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 503 N.E.2d 102, 102 (1986)
(citation omitted). Additionally, in Russo v. Advance
Publications, a defective libel action "may not be pleaded as
prima facie tort or conspiracy".