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August 28, 1968


The opinion of the court was delivered by: LORD, III

 This is an action for libel. The plaintiff, a citizen of Pennsylvania, was at the time of the events which gave rise to the present action a distributor of nudist magazines in a territory including Philadelphia and the surrounding area. The defendant, Metromedia, Inc., a Delaware corporation with its principal place of business in New York, owns and operates a radio station in Philadelphia known as WIP.

 The jury rendered a verdict in favor of the plaintiff of general damages in the sum of $25,000 and punitive damages in the sum of $725,000. The defendant has filed motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

 The asserted liability of the defendant was based upon two series of broadcasts in the fall of 1963. The first series, October 4 and 5, dealt with raids on the plaintiff's home and warehouse and his arrest by the Special Investigations Squad of Philadelphia Police Captain Clarence Ferguson. The first broadcast was that of October 4, 1963 at 6:00 p.m.:

"City Cracks Down on Smut Merchants
"The Special Investigations Squad raided the home of George Rosenbloom in the 1800 block of Vesta Street this afternoon. Police confiscated 1000 allegedly obscene books at Rosenbloom's home and arrested him on charges of possession of obscene literature. The Special Investigations Squad also raided a barn in the 2000 block of Welsh Road near Bustleton Avenue and confiscated 3000 obscene books. Captain Ferguson says he believes they have hit the supply of a main distributor of obscene material in Philadelphia."

 The second series, October 21, 25 and November 1, involved the plaintiff's action for an injunction against the allegedly illegal arrests and the publicity thereof. The broadcast of October 21, 1963, at 8:30 a.m. is representative:

"Federal District Judge Joseph S. Lord, III, *fn1" will hear argument today from two publishers and a distributor, all seeking an injunction against Philadelphia Police Commissioner Howard Leary, District Attorney James C. Crumlish, Jr., a local television station and a newspaper, ordering them to lay off the smut literature racket.
"The girly-book peddlers say the police crackdown and continued reference to their borderline literature as smut or filth is hurting their business. Judge Lord refused to issue a temporary injunction when he was first approached. Today he'll decide the issue. It will set a precedent and if the injunction is not granted it could signal an even more intense effort to rid the city of pornography."

 At 9:30 a.m. on the same day, defendant's broadcast was:

"Smut distributors seek an injunction against police raids in Philadelphia."

 All of the broadcasts in this series were replete with repeated references to "smut" and "girlie books". Furthermore, the plain implication of the broadcasts was that the plaintiffs in the federal court were attempting to halt the general campaign against pornographic literature. The unmistakable inference was that plaintiffs wanted to stop all raids throughout the city, even as against literature that was, in fact, pornographic and even though they had nothing to do with its distribution. Thus, at 2:00 p.m. on October 21, defendant described the plaintiffs as:

"* * * asking an injunction against further raids by police and the District Attorney's office on smut publications. The complainants charge they are being hurt financially. * * *"

 Again (October 21 at 4:30 p.m.), the broadcast had complainants going before "Judge Gold": *fn2"

"* * * claiming they are suffering economic and financial hardship because of a recent crackdown on smut material."

 The suit (Outdoor American Corp. et al. v. City of Philadelphia, et al., C.A. No. 34316) was, in fact, only concerned with plaintiffs' publications. It asserted that the publications were not obscene and sought to protect only their own assertedly lawful business.

 There is no evidence of what investigation was conducted by defendant other than a reliance on Captain Ferguson for the first series of broadcasts. Captain Ferguson, who had never been to the Philadelphia Art Museum and who was uncertain of its location, conceived of obscenity as:

"A. Any time the private parts is [sic] showing of the female or the private parts is [sic] shown of males and they are offered for sale to the public, that is what I consider the answer, Mr. Paul."


 New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686 (1964), laid down the First Amendment rule applicable to libel actions by public officials:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or [not]. * * *"

 Curtis Publishing Co. v. Butts (Associated Press v. Walker), 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967) considered the impact of Sullivan on suits brought by those who are not public officials, but who are "public figures". In that case, Mr. Justice Harlan enunciated a rule formulated somewhat differently from that of Sullivan. The Chief Justice, however, in Part I of his concurring opinion, said (388 U.S. at 164, 87 S. Ct. at 1996):

"I therefore adhere to the New York Times standard in the case of 'public figures' as well as 'public officials.' * * *"

 Four other Justices concurred in Part I of the Chief Justice's opinion. It may therefore be said that the Sullivan standard is applicable to cases of "public figures". See Cepeda v. Cowles Magazines & Broadcasting, Inc., 392 F.2d 417, 421 (C.A.9, 1968). The question is does it apply here, a question that is by no means free of difficulty.

 In Butts, Mr. Justice Harlan said, 388 U.S. at 134, 87 S. Ct. at 1980:

"* * * We brought these two cases here * * * to consider the impact of that decision [Sullivan] on libel actions instituted by persons who are not public officials, but who are 'public figures' and involved in issues in which the public has a justified and important interest. * * *"

 It would thus appear that, having referred to the "figures" and the "issues" in the conjunctive, the Court intended the scope of Butts to reach only those cases where both the criteria of a public figure and a public issue were satisfied. And if this is so, we would have no difficulty in concluding that Butts does not govern here. George Rosenbloom was not, before defendant's onslaughts, a public figure. Unfortunately, Justice Harlan did not stop with the neat formulation of the reach of Butts. Footnote 19, (388 U.S. at 155, 87 S. Ct. at 1992) reads:

"Nor does anything we have said touch, in any way, libel or other tort actions not involving public figures or matters of public interest."

 Is this later use of the disjunctive to be taken to mean that one not a public figure may nonetheless have to bear the heavy constitutional burden if he is libelled in a matter of "public interest"? We think not.

 Application of the constitutional privilege in the law of libel requires a delicate balancing of the freedoms of speech and press on the one hand, and the right of the individual to be free from injury to his reputation by defamation on the other. It cannot be gainsaid that in substituting redress in the courts for violence as a means of vindicating personal rights the law of defamation serves a very useful social function, Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), a function no ...

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