The opinion of the court was delivered by: HIGGINBOTHAM
Does he have the right to collect civil damages under the Federal Civil Rights Act (42 U.S.C. § 1983) by reason of pretrial newspaper publicity which could purportedly deprive him of an impartial jury trial in a forthcoming criminal case where he would be a defendant?
Plaintiff attempts to cast this case as if the record establishes that the rights of freedom of the press or freedom of speech have collided with his right to a fair trial. Thus, he urges that because of the purported collision of these competing interests he is entitled to $600,000 in damages from a newspaper reporter and a First Assistant District Attorney. If here we had a factual record which established a collision of these two stellar rights (freedom of the press versus a fair trial), the problem could be more difficult for a court to make a definitive judgment as to which right should prevail in a suit for civil damages. But that hypothetical difficulty does not exist here. Factually, there has been no actual clash between these values, for plaintiff cannot establish that by reason of pretrial newspaper publicity he sustained any impediment to an impartial and fair trial. Thus, in contrast to plaintiff's categorization we have here a record like ships passing in the night without collision or even any substantial probability of colliding.
Jack Burton Tunnell contends that the article published in a Philadelphia newspaper, The Bulletin, on March 19, 1972, was the result of a civil conspiracy between defendants Doris Wiley, a Bulletin reporter, and First Assistant District Attorney for Philadelphia County, Richard A. Sprague, to deprive plaintiff of his right to a fair trial, his right to freedom of access to the Court, and his right to freedom from excessive bail, said rights being guaranteed under the Due Process Clause of the Fourteenth Amendment.
Defendants Doris Wiley and Richard A. Sprague filed Motions to Dismiss the Complaint for failure to state a claim upon which relief can be granted and alternatively motions for summary judgment. Fed. R. Civ. P. 12(b) and 56. In addition, defendant Wiley filed a motion to strike the entire complaint inasmuch as it violated certain procedural rules controlling the form of pleadings. Fed. R. Civ. P. 9(a) and 10(b).
I hold that, as a matter of law, the undisputed facts fail to establish the constitutional deprivations claimed by plaintiff in his complaint; more specifically, I find and hold that the pretrial publicity did not in any way deprive him of a fair trial in his subsequent criminal case. As to all of the issues, defendants are entitled to a motion for summary judgment, and as to some components of plaintiff's claim defendants are also entitled to a motion to dismiss.
The caption of the article in the Sunday Bulletin states "Officials cite early release in parolee's attack on two youths," with a sub-heading "I burned them in the eyes so they couldn't tell the man who did this." The article further quotes First Assistant District Attorney Richard A. Sprague as saying that it was "idiotic" that Tunnell had been placed on the pre-release program and "let the legislators who passed the laws allowing this, explain it to that boy and girl." He said, "It is outrageous. When is the public going to have enough of this? How many times must people be raped, maimed, murdered . . . before the public demands a halt to it?" Because of the newspaper's publishing of this article and the Assistant District Attorney's comments, plaintiff seeks to obtain $600,000 in damages.
Plaintiff insists that his claim is not one for defamation and that for his cause of action under 42 U.S.C. § 1983 ". . . the test of actual malice and known falsity is therefore inapplicable." (See Plaintiff's brief, p. 9). Thus plaintiff seeks to avoid having to face in this case the reporter's and Assistant District Attorney's probable defense
that the statements published were in fact truthful as to his sexual attack on a teenage girl and his assault, mayhem and brutality on both teenagers. Similarly, he seeks to nullify the First Amendment constitutional guarantee which precludes liability if the statement was not published with "a reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 276, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). See, Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971).
In substance, plaintiff urges that the Assistant District Attorney's comment that Tunnell's act constituted "one of the most atrocious in the crime annals of the city" was so inflammatory that it and other comments on the facts of this case "lessens the likelihood that plaintiff could ever have the fair trial . . . he is entitled under the due process clause of the 14th Amendment." (See Plaintiff's brief, p. 3.) See, Commonwealth of Pennsylvania v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973). The core of plaintiff's theory is that he is entitled to substantial damages because this publicity, even if true or privileged, could preclude him from a fair trial on the criminal charges. I need not speculate on the hypothesis as to whether the published article could have denied him a fair trial because I find that plaintiff has failed to produce any evidence that the published statements in fact precluded him from obtaining a fair trial when his criminal case was listed thirteen months later.