The opinion of the court was delivered by: KNOX
Plaintiff alleges two causes of action against Newsweek, Inc., a national weekly publication. The first is for libel, the second is for invasion of privacy, both arising out of an article which appeared in the October 6, 1969, issue, the cover of which displays in prominent type "The Troubled American -- A Special Report on the White Majority". Plaintiff also complains of publication of certain letters to the editor concerning this article in subsequent numbers and the advertising of the article in special reprint form.
On page 28 facing the beginning of the story is a picture of the plaintiff standing on his lawn at 1103 Walnut Street, Wilkinsburg, Allegheny County, Pennsylvania, wearing an open sport shirt and standing next to a large American flag mounted on a pole in his lawn. Numerous excerpts from the story are put together in briefs of counsel to show that the plaintiff is being depicted as the typical "Troubled American", a person considered "angry, uncultured, crude, violence prone, hostile to both rich and poor, and racially prejudiced". As a result of this it is claimed that plaintiff has been placed in a position of public hatred, contempt and ridicule, the classic words for an action of libel. It is noted that plaintiff's name does not appear on the photograph nor anywhere in the article. None of the views reported in the article are in any way ascribed to plaintiff. We can readily understand however that plaintiff's friends and neighbors in Wilkinsburg and the Pittsburgh area generally recognizing his picture might consider he was one of the persons or typical of the persons discussed in the article.
Discovery has been had and both the defendant and the plaintiff have moved for summary judgment. For reasons hereinafter stated, we have concluded that defendant's motion must be granted as to the first cause of action for libel, but denied as to the second cause of action for invasion of privacy and that plaintiff's motion for summary judgment must be denied as to both causes of action. Since we have two separate causes of action, it is permissible for this court to grant a partial summary judgment as to one under the decision of the Court of Appeals for this Circuit in Repass v. Vreeland, 357 F.2d 801 (3d Cir. 1966).
We start out with the assumption that plaintiff's innuendo, that is, the claimed meaning which the average person might derive from seeing the full page colored photograph of plaintiff in conjunction with the article is that alleged by the plaintiff. The difficulty is that assuming all this is true, it still does not in the view of the court add up to a cause of action for libel under Pennsylvania law which applies in this case. Plaintiff resides in the Western District of Pennsylvania. The magazine was circulated here and it was here the damage, if any, to plaintiff was done.
Pennsylvania has a statute respecting libel actions (Act 1953 August 21 P.L. 1291, 12 Purdon's Pa. Statutes § 1584a.
We hold that the article viewed in its entirety is not susceptible of a defamatory meaning which is actionable under Pennsylvania law. Pennsylvania rules that the question of whether an article is capable of defamatory meaning is a question of law for the court. Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A. 2d 899 (1971); Sellers v. Time, Inc., 423 F.2d 887, (3d Cir. 1970); Sarkees v. Warner-West Corp., 349 Pa. 365, 37 A. 2d 544 (1944); Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 229 A. 2d 733 (1967).
It is undoubtedly true in Pennsylvania that the fact defendant is engaged in the publishing business gives it no privilege for character assassination. Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 191 A. 2d 662 (1963). It is also true that you cannot defame a group of several hundred people. While plaintiff need not be specifically named or singled out, nevertheless the matter must clearly refer to a specific person. Schonek v. WJAC, Inc., 436 Pa. 78, 258 A. 2d 504 (1969). Since the article indicates that the views expressed are those of the white majority in the United States of whom plaintiff is one, then we would have to conclude that the article, if libelous, libels more than half of the people in the United States and not plaintiff in particular.
The sum total of the words which plaintiff has concluded are descriptive of the persons considered in the article is "bigot". We hold that to call a person a bigot or other appropriate name descriptive of his political, racial, religious, economic or sociological philosophies gives no rise to an action for libel.
The basic case is McAndrew v. Scranton Republican Publishing Co., 364 Pa. 504, 72 A. 2d 780 (1950) where it was held that an article claiming that a Republican candidate for office was carrying the flag and running on his war record and that a Democratic candidate had said "We all have to have a little Communism" is not libelous. The court relied heavily on a prior decision of the Court of Appeals for this Circuit in Sweeney v. Philadelphia Record Co., 126 F.2d 53 (3d Cir. 1942) and a similar action brought by Congressman Sweeney in Ohio, Sweeney v. Beacon Journal Pub. Co., 66 Ohio App. 475, 35 N.E. 2d 471 (1941). The McAndrews case held that not every annoying and embarrassing publication is a libel. The court said:
"This report might be very annoying and embarrassing to B but he would not be defamed by it. Not every lie is a libel. A might falsely report that B had said that C was seeking votes because of his race or had said that D, who happened to be a fine tenor singer, was trying to 'sing his way' into public office. While such reports might be very annoying and embarrassing to B, they would not justify an action for libel against A. Many men in public life and in private life have been greatly annoyed by being misquoted. But annoyance does not constitute defamation."
The court went on to say with respect to the Sweeney cases:
"It would doubtless be very annoying for a man to be charged with bigotry of any kind, yet it has been held that for a man to be charged with such bigotry is not defamation. In Sweeney v. Beacon Journal Pub. Co., 66 Ohio App. 475, 20 Ohio Op. 486, 35 N.E. 2d 471, a member of the United States Congress brought an action of libel against a newspaper which published a daily syndicated column stating that the congressman was opposing the appointment of a certain individual to a federal judgeship, because that individual was a foreign-born Jew. In overruling plaintiff's appeal from judgment against him on a question of law, the appellate court said: 'Does the article reflect upon his character in such a manner as to bring him into ridicule, hatred or contempt?' This question was answered in the negative. And in Sweeney v. Philadelphia Record Company, 3 Cir., 126 F.2d 53, where there was a similar action based on the same syndicated article, the Circuit Court of ...