The opinion of the court was delivered by: BECHTLE
This is a diversity action for damages in excess of half a million dollars brought by Max Gordon, his wife, and married daughter, based on alleged libel and invasion of privacy under Pennsylvania law stemming from the publication by Random House, Inc. in April of 1971 of a book entitled: "The Negroes and the Jews," written by Lenora E. Berson, a Philadelphia author.
For the purposes of this action, the focal point of the book is the opening chapter, entitled "A Prologue: A Tale of Two Cities."
The Prologue consists of but nine printed pages, the greater part of which is devoted to a brief history of Max Gordon
and his involvement in the North Philadelphia Riots of 1964 which spread to the 900 block of North Marshall Street. It establishes that he is a Jewish retailer selling merchandise to black customers in an area ravished by a black riot. It starts out with mentioning the two-night riot in the latter part of August of 1964, and informs the reader that the arrival of the would-be looters at Max Gordon's store reminded him of a pogrom
in his native Russia. It recounts how Max Gordon, after having survived two of them in Russian Ukraine, came to this country in 1931 via Cuba and landed in Philadelphia with six dollars in his pocket. Over a period of four years, he worked in a mill that made stockings before he became a jobber. In the next years, the Prologue states, he sold wares from a push cart and then bought a store front property on North Marshall Street where he sold ladies' garments. It discloses that his store is dead center of the strip that thirty-five years ago was the mercantile heart of Jewish Philadelphia. And, even though the neighborhood which was formerly all white is now inhabited by Puerto Rican and colored, he has decided to stay in business there. It reveals that in the black metropolises that are forming in the core areas of all the great American cities "it is the Max Gordons and their younger, more Americanized co-religionists that form the business infra-structure. It is the Jewish merchant, grocer and landlord who has become the face of white urban America."
Then the Prologue suddenly introduces the reader to "Earl," an itinerant black high school dropout from the Harlem ghetto. The author, relating views and beliefs of Earl, tells us:
"'Nobody wants to give you a job if you've got a record. And if you do get one, it's a racket.' But then everything in Earl's life was 'a racket' or 'a gyp.' He was a 'victim' of the white world and 'the Jew business.' Angrily he pointed to grocery stores with Jewish names that he claimed sold rotten food, to stores that he swore sold cheap clothes at high prices, to Jewish-run bars and to a Jewish real estate office. 'You want to know why we hate Jews? I'll tell you why. When I was born the doctor was a Jew. The white teacher was a Jew. The landlord is a Jew. The grocer is a Jew. The man who gives credit at the store is a Jew. The man who takes back what you bought when you can't make the gyp payments is a Jew. The man at the employment agency is a Jew. The man who hires you is a Jew, and the man who fires you as soon as you finish paying the commission to the other Jew for getting you the job is a Jew. Then some Jew wants to take you to lunch because it's Brotherhood Week. You know all those Jews in the civil rights marches and going down south -- you know why they do it? They do it to take the heat off themselves. They've got a bad conscience because they live on black dollars. We had the riots because of the Jews.'"
In the next to the last paragraph of the Prologue, the author states, after pointing out that "the relationship between the Negroes and the Jews is not limited to the cruel juxtaposition of buyer and seller," "as allies they are at the core of the liberal movement in the United States. As antagonists they may well hasten the nation down the bloody road of racism and reaction."
The complaint, filed June 15, 1971 in the United States District Court for the Southern District of New York and then transferred here, consists of 24 paragraphs in three counts. Count I (paragraphs 1 to 14) contains the allegations of Max Gordon's claim; Count II (paragraphs 15 to 19) contains those of his wife, Anna; and Count III (paragraphs 20 to 24) embodies those of their married daughter, Mrs. Frances Shusterman. Max Gordon specifically avers in paragraph 8 of Count I of the complaint:
The foregoing book and prologue thereof was meant and intended to convey that the plaintiff [Max Gordon] was a victimizing and unscrupulous Jew who takes advantage of Negroes by shoddy credit and retail practices; and is one of those people who is responsible for the riots in the cities of this country in the black ghetto areas; and has treated his Ukrainian customers with contempt; and is also guilty of conduct unbecoming a decent merchant and citizen of this country; and further, to hold the plaintiff in contempt in the eyes of his customers and the neighborhood in which his business is situate.
Random House has filed a motion, now before us for disposition, for summary judgment in its favor with respect to all claims asserted by all plaintiffs in this case. The grounds for the motion are: "(1) the alleged defamatory utterances forming the basis of the instant actions involved matters of public and general concern and were published without either knowing, or reckless, falsity, and; (2) the utterances were not defamatory of plaintiffs, were not capable of a defamatory meaning as to them and did not invade their privacy."
A. Was Max Gordon defamed ?
I shall answer the second ground in part first: Under Pennsylvania law, which is to be applied here, it is the function of the court, in the first instance, to determine whether the communication complained of is capable of a defamatory meaning. If the court determines that the communication is capable of a defamatory meaning, it is for the jury to determine whether it was so understood by the recipient. See Corabi v. Curtis Publishing Company, 441 Pa. 432, 442, 273 A.2d 899, 904 (1971). On the definition of "libel" this same case tells us:
A libel is a maliciously written or printed publication which tends to blacken a person's reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession: Volomino v. Messenger Pub. Co., 410 Pa. 611, 189 A.2d 873 (1963); Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962); Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954) . . .
. . . And, "to be defamatory, it is not necessary that the communication actually cause harm to another's reputation or deter third persons from associating or dealing with him. Its character depends upon its general tendency to have ...