GRANT v. READER'S DIGEST ASS'N

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Docket Number

No. 46.

Attorney(S)

Osmond K. Fraenkel, of New York City, for appellant. Patrick H. Sullivan, of New York City, for appellee.

Judges

Thomas Walter Swan
Charles Edward Clark

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Smart Summary

Factual and Procedural Background

This case arises from an action for libel brought by Sidney S. Grant, a Massachusetts lawyer, against Reader's Digest Association, Inc., a New York corporation. The complaint alleged that the defendant published in its periodical an article containing a passage which implied that Grant had acted as a legislative representative for the Massachusetts Communist Party. The District Court dismissed the complaint on the ground that it was legally insufficient on its face. The plaintiff appealed from this judgment.

Legal Issues Presented

What meaning might a jury attribute to the words published in the article about the plaintiff?
Whether the meaning so attributed constitutes libel under New York law.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hays v. American Defense Society, 252 N.Y. 266, 169 N.E. 380	The innuendo added nothing to the meaning of the words; it could not expand the meaning.	Used to establish that the innuendo did not change the meaning of the published words.
Peck v. Tribune Co., 214 U.S. 185	Defamation protects reputation; moral obliquity of those who might disesteem the plaintiff is relevant to damages.	Confirmed the general principle that reputation is protected even if some groups hold different moral standards.
Triggs v. Sun Publishing Printing Ass'n, 179 N.Y. 144	Libel defined as utterances arousing hatred, contempt, scorn, obloquy, or shame.	Guided the court's understanding of what constitutes libel in New York.
Sydney v. MacFadden Newspaper Publishing Corp., 242 N.Y. 208	Same as Triggs: definition of libel includes arousing negative feelings such as contempt or scorn.	Supported the standard for libel under New York law.
Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217	Considered whether words must affect "right-thinking" people to be actionable as libel.	The court questioned the continuing validity of this limitation in light of subsequent cases.
Katapodis v. Brooklyn Spectator, Inc., 287 N.Y. 17, 38 N.E.2d 112	Imputation of extreme poverty might be actionable libel despite no contempt from "right-thinking" people.	Used to argue that libel need not be limited only to harm among "right-thinking" people.
Moore v. Francis, 121 N.Y. 199	Leaves open whether it is libelous to say a man is insane.	Indicates uncertainty about the scope of libel in sensitive personal characterizations.
Southwick v. Stevens, 10 John., N.Y. 443; Perkins v. Mitchell, 31 Barb., N.Y. 461	Cases related to libel and the effects of statements on reputation.	Referenced in context of what constitutes actionable defamation.
Shelby v. Sun Publishing Printing Ass'n, 109 N.Y. 611, 15 N.E. 895	Words that would not cause "right-thinking" people to despise the plaintiff may not be actionable.	Used to discuss limitations on libel claims.
Martin v. Press Publishing Co., 93 App. Div. 531, 87 N.Y.S. 859	Similar to Shelby regarding the scope of actionable libel.	Supports the notion that some statements are not libelous if they do not provoke contempt.
Garriga v. Richfield, 174 Misc. 315, 20 N.Y.S.2d 544	Held that stating a man was a Communist was not libelous.	Represents a position that might limit libel claims in political context.
Levy v. Gelber, 175 Misc. 746, 25 N.Y.S.2d 148	Held that stating a man was a Communist was libelous.	Indicates judicial disagreement on the libelous nature of such statements.
Boudin v. Tishman, 264 App. Div. 842, 35 N.Y.S.2d 760	Unescapable ruling that appears to resolve the question in favor of libelability.	Conclusive for the court, establishing that calling a man a Communist or sympathizer is libelous.
Mawe v. Piggott, Irish Rep. 4 Comm.Law, 54	Among criminals or sympathizers with crime, certain defamatory statements would not be actionable.	Used as analogy to argue limits on libel claims depending on audience and context.
Mycroft v. Sleight, 90 L.J.K.B. 883 (England)	Recognized limitation that libel must affect "right-thinking" people.	Referenced to compare English and New York libel standards.

Court's Reasoning and Analysis

The court analyzed the complaint’s allegations and the published words, focusing on two questions: the meaning a jury might attribute to the words, and whether that meaning was libelous under New York law. The court found that although the article did not explicitly state that the plaintiff was a member of the Communist Party, it did allege he acted as its legislative agent, implying sympathy with the Party’s aims and methods. The court reasoned that this implication was a reasonable inference a jury could draw.

In determining whether such an implication was libelous, the court reviewed New York precedents defining libel as statements arousing hatred, contempt, scorn, obloquy, or shame. It noted some precedents suggested that to be actionable, the words must affect “right-thinking” people, but questioned whether that limitation should apply here. The court concluded that it was sufficient if some people—regardless of whether they are “right-thinking”—would regard the plaintiff with disesteem due to the alleged association with the Communist Party.

The court surveyed conflicting lower court decisions in New York about whether calling a person a Communist is libelous. It found the latest state ruling (Boudin v. Tishman) conclusive, holding that calling a person an agent or sympathizer of the Communist Party is libelous. The court rejected any distinction between being a member and being an agent or sympathizer as a difference of degree only, not enough to change the libelous nature of the statement.

Holding and Implications

The court REVERSED the judgment dismissing the complaint and REMANDED the cause for further proceedings consistent with its opinion.

The direct effect of this decision is to allow the plaintiff’s libel claim to proceed, rejecting the dismissal for legal insufficiency. The court did not establish new precedent beyond applying existing New York law principles, but clarified that allegations of acting as an agent or sympathizer of the Communist Party can be libelous even if not explicitly stating party membership. The ruling emphasizes that libel need not be limited to statements affecting only “right-thinking” persons.

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GRANT v. READER'S DIGEST ASS'N, Inc.

L. HAND, Circuit Judge.

This is an appeal from a judgment dismissing a complaint in libel for insufficiency in law upon its face. The complaint alleged that the plaintiff was a Massachusetts lawyer, living in that state; that the defendant, a New York corporation, published a periodical of general circulation, read by lawyers, judges and the general public; and that one issue of the periodical contained an article entitled "I Object To My Union in Politics," in which the following passage appeared:

"And another thing. In my state the Political Action Committee has hired as its legislative agent one, Sidney S. Grant, who but recently was a legislative representative for the Massachusetts Communist Party."

The innuendo then alleged that this passage charged the plaintiff with having represented the Communist Party in Massachusetts as its legislative agent, which was untrue and malicious. Two questions arise: (1) What meaning the jury might attribute to the words; (2) whether the meaning so attributed was libellous. So far as the wrong consisted of publishing the article in New York, the decisions of the courts of that state are authoritative for us under now familiar principles. As to publication in another state, a question might arise whether we must follow the decisions of that state or any decisions of New York which determined what effect in such cases the courts of New York give to the decisions of another state. No such question comes up upon this motion; and we leave it open. The innuendo added nothing to the meaning of the words, and, indeed, could not. Hays v. American Defense Society, 252 N.Y. 266, 169 N.E. 380. However, although the words did not say that the plaintiff was a member of the Communist Party, they did say that he had acted on its behalf, and we think that a jury might in addition find that they implied that he was in general sympathy with its objects and methods. The last conclusion does indeed involve the assumption that the Communist Party would not retain as its "legislative representative" a person who was not in general accord with its purposes; but that inference is reasonable and was pretty plainly what the author wished readers to draw from his words. The case therefore turns upon whether it is libellous in New York to write of a lawyer that he has acted as agent of the Communist Party, and is a believer in its aims and methods.

The interest at stake in all defamation is concededly the reputation of the person assailed; and any moral obliquity of the opinions of those in whose minds the words might lessen that reputation, would normally be relevant only in mitigation of damages. A man may value his reputation even among those who do not embrace the prevailing moral standards; and it would seem that the jury should be allowed to appraise how far he should be indemnified for the disesteem of such persons. That is the usual rule. Peck v. Tribune Co., 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960, 16 Ann.Cas. 1075; Restatement of Torts, § 559. The New York decisions define libel, in accordance with the usual rubric, as consisting of utterances which arouse "hatred, contempt, scorn, obloquy or shame," and the like. Triggs v. Sun Publishing Printing Ass'n, 179 N.Y. 144, 153, 71 N.E. 739, 66 L.R.A. 612, 103 Am.St.Rep. 841, 1 Ann.Cas. 326; Sydney v. MacFadden Newspaper Publishing Corp., 242 N.Y. 208, 211, 212, 151 N.E. 209, 44 A.L.R. 1419; Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 102, 186 N.E. 217; Katapodis v. Brooklyn Spectator, Inc., 287 N.Y. 17, 20, 38 N.E.2d 112; Balabanoff v. Hearst Consolidated Publications, 294 N.Y. 351, 356, 62 N.E.2d 599; Sweeney v. Schenectady Union Publishing Co., 2 Cir., 122 F.2d 288. However, the opinions at times seem to make it a condition that to be actionable the words must be such as would so affect "right-thinking" people; and in Kimmerle v. New York Evening Journal, Inc., supra, 262 N.Y. 99, 102, 103, 186 N.E. 217 that was the turning point of the decision. The same limitation has apparently been recognized in England (Mycroft v. Sleight, 90 L.J.K.B. 883); and it is fairly plain that there must come a point where that is true. As was said in Mawe v. Piggott, Irish Rep. 4 Comm.Law, 54, 62, among those "who were themselves criminal or sympathized with crime," it would expose one "to great odium to represent him as an informer or prosecutor or otherwise aiding in the detection of crime"; yet certainly the words would not be actionable. Be that as it may, in New York if the exception covers more than such a case, it does not go far enough to excuse the utterance at bar. Katapodis v. Brooklyn Spectator, Inc., supra ( 287 N.Y. 17, 38 N.E.2d 112), following the old case of Moffatt v. Cauldwell, 3 Hun 26, 5 T. C. 256, held that the imputation of extreme poverty might be actionable; although certainly "right-thinking" people ought not shun, or despise, or otherwise condemn one because he is poor. Indeed, the only declaration of the Court of Appeals (Moore v. Francis, 121 N.Y. 199, 205, 206, 23 N.E. 1127, 8 L.R.A. 214, 18 Am.St.Rep. 810, 30 St.R. 467) leaves it still open whether it is not libellous to say that a man is insane. Southwick v. Stevens, 10 John., N.Y., 443; Perkins v. Mitchell, 31 Barb., N.Y., 461, 465. Shelby v. Sun Publishing Printing Ass'n, 38 Hun 474, affirmed on opinion below, 109 N.Y. 611, 15 N.E. 895; and Martin v. Press Publishing Co., 93 App. Div. 531, 87 N.Y.S. 859, are other instances where the words would not have caused "right-thinking" people to regard the plaintiff with scorn, aversion or hostility. We do not believe, therefore, that we need say whether "right-thinking" people would harbor similar feelings toward a lawyer, because he had been an agent for the Communist Party, or was a sympathizer with its aims and means. It is enough if there be some, as there certainly are, who would feel so, even though they would be "wrong-thinking" people if they did. So far as Kimmerle v. New York Evening Journal, Inc., supra ( 262 N.Y. 99, 186 N.E. 217), is to the contrary, we cannot think that it survives Katapodis v. Brooklyn Spectator, Inc., supra ( 287 N.Y. 17, 38 N.E.2d 112).

The lower courts in New York have passed on almost the same question in three cases. In Garriga v. Richfield, 174 Misc. 315, 20 N.Y.S.2d 544, Pecora, J., held that it was not libellous to say that a man was a Communist; in the next year in Levy v. Gelber, 175 Misc. 746, 25 N.Y.S.2d 148, Hofstadter, J., held otherwise. That perhaps left the answer open; but Boudin v. Tishman, 264 App. Div. 842, 35 N.Y.S.2d 760, was an unescapable ruling, although no opinion was written. Being the last decision of the state courts, it is conclusive upon us, unless there is a difference between saying that a man is a Communist and saying that he is an agent for the Party or sympathizes with its objects and methods. Any difference is one of degree only: those who would take it ill of a lawyer that he was a member of the Party, might no doubt take it less so if he were only what is called a "fellow-traveler"; but, since the basis for the reproach ordinarily lies in some supposed threat to our institutions, those who fear that threat are not likely to believe that it is limited to party members. Indeed, it is not uncommon for them to feel less concern at avowed propaganda than at what they regard as the insidious spread of the dreaded doctrines by those who only dally and coquette with them, and have not the courage openly to proclaim themselves.

Judgment reversed; cause remanded.