37 A.2d 544 (1944); Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 229 A.2d 733 (1967).
The distinction between whether a communication is defamatory (clearly a question for the jury under Pennsylvania law) and whether a communication is capable of a defamatory meaning as a matter of law for the trial court in the first instance, is fundamental. Sellers v. Time, Inc., supra, 423 F.2d at 889. In this regard the Pennsylvania Supreme Court in Scott-Taylor, Inc. v. Stokes, supra, 229 A.2d at 734, said that while a statement may be personally annoying or embarrassing, annoyance does not constitute defamation; to be capable of defamatory meaning a statement must impart the kind of harm that "grievously fractures the plaintiff's standing in the community of respectable society."
This court's determination as to which of the nineteen specified remarks is capable of a defamatory meaning must consider that Pennsylvania law mandates that to prevent a chilling effect on free speech, "statements which represent differences of opinion or are annoying or embarrassing, are, without more, not libelous." Bogash v. Elkins, 405 Pa. 437, 440, 176 A.2d 677, 679 (1962).
The case of Redding v. Carlton, 223 Pa.Super. 136, 296 A.2d 880 (1972) further cautions that a publication is not capable of defamatory meaning where its meaning is "no more than rhetorical hyperbole" or "a vigorous epithet." In Redding, supra, the plaintiff was a township supervisor and the owner of property situated near the vicinity of the proposed site for that township's new headquarters. The defendants launched a campaign to prevent the purchase of the new site, alleging that plaintiff's dual role as supervisor and property owner constituted a "conflict of interest at the very least, and perhaps much more." The allegations also charged that plaintiff's land adjoined the proposed site (plaintiff's property was actually near but not adjacent to the proposed site) and that the costs for the proposed site were deliberately understated. The Superior Court, relying on Greenbelt Cooperative Publishing Ass'n, v. Bresler, 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970),
decided that the statement about plaintiff's land was a minor misstatement analogous to a "rhetorical hyperbole" or "vigorous epithet" which is incapable of a defamatory meaning.
We are further guided by Pennsylvania law which states that "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 such an effect." Restatement (First) of Torts § 569, comment d (1938). See also, Miller v. Hubbard, 205 Pa.Super. 111, 207 A.2d 913 (1965).
In determining whether these nineteen statements by Armstrong are capable of being defamatory of Fram, this court must read the statements of Armstrong in the context in which they were uttered on "newsroom." MacRae v. Afro-American Company, 172 F. Supp. 184 (E.D.Pa.1959), aff'd 274 F.2d 287 (3d Cir. 1960); Restatement of Torts § 563d; see also 12 P.S. § 1584a(1)(d). Because under Pennsylvania law a factor, in determining whether a statement may be capable of a defamatory meaning, is the nature of the audience reached by the publication, Sellers v. Time, Inc., supra, 423 F.2d at 890, the test is the effect the words are fairly calculated to produce, that is, the impression the words would naturally engender in the minds of the average persons who regularly watch WQED's "Newsroom." The words of Armstrong must be given by the court the significance that the "Newsroom" audience is likely to attribute to them. Boyer v. Pitt Publishing Company, 324 Pa. 154, 188 A. 203 (1936).
This court also notes that the determination of whether words are actionable without proof of special damages ("actionable per se") is a matter controlled by the substantive law of Pennsylvania. Altoona Clay Products, Inc. v. Dun & Bradstreet, Inc., 367 F.2d 625 (3d Cir. 1966); Sweeney v. Philadelphia Record Co., 126 F.2d 53 (3d Cir. 1942). In this regard, we recognize that Pennsylvania treats slanderous words injurious to one's business or profession as actionable per se. Altoona Clay Products, Inc. v. Dun & Bradstreet, Inc., supra, 367 F.2d at 629.
On the other hand, the court's determination of the defamatory capability of Armstrong's statements will also consider that defendant in its brief, answer, and affidavit has raised truth as a defense to many of the allegedly defamatory statements specified by plaintiff. And, in Pennsylvania, truth is a complete defense to an action for defamation. Schonek v. W.J.A.C., Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969); Restatement of Torts § 582.
We must now apply the above criteria to the nineteen statements of Armstrong which Fram has said are defamatory. In assessing whether these statements are capable of being defamatory of Fram, our analysis attempts to place these statements in general categories. We note, however, that some statements could be appropriately placed in more than one of the categories used in our analysis.
Initially, we believe that several of the nineteen statements of which Fram complains must be determined as being incapable of a defamatory meaning because they do not actually refer to the plaintiff. Armstrong in statements 8 and 14 offers an opinion as to the role of the P.U.C. in overseeing taxicab service, while in statement 16 he differs with Fram on the validity of Fram's statistics. These statements are not capable, even in the most oblique way, of referring to Fram in a defamatory manner.
Still other statements, although they would be clearly understood as applying to the plaintiff, do not convey any meaning which would be capable of tending to lower Fram's status or his business' reputation in the minds of WQED's audience. Statement 2, in addition to being true, refers to the fact that the plaintiff, some nine months after Yellow Cab received a rate increase authorization from the P.U.C., was still enthusiastically searching for public support in his campaign to protest and annul that rate hike. The court fails to understand how this statement which fairly reflects Fram's activities could defame him. In statement 5, Armstrong bluntly characterizes the dilemma of Fram at that point in time; it is not capable of defaming Fram. Likewise, in statement 19, Armstrong merely rejects a face-to-face confrontation with plaintiff as meaningless by satirically suggesting that Fram's accusations must be weighed by legal rules of evidence. This statement undoubtedly annoys plaintiff but it clearly does not harbor a meaning which would be capable of slandering Fram.
All those statements wherein Armstrong either denies the accusations charged by Fram on the previous night's "Newsroom" (statements 3, 4, 7, 15), or where Armstrong gives his impressions of Fram's previous statements (statements 1, 17) are not capable of a defamatory meaning. Plaintiff Fram did seriously accuse Yellow Cab of much wrongdoing on the previous show. Armstrong was entitled to express his impressions of Fram's statements.
It may be that statements 6, 10, 11, 12 and 13 are on their face actionable per se (that is, actionable without any showing of special injuries). It may be that the statements tend to harm Fram's reputation in his trade or business. However, they are not capable of being defamatory because defendant has proved that they are true. These five statements refer to the well-documented fact that the P.U.C. and the Pennsylvania Superior Court ruled that Peoples Cab's operation of allowing its drivers to choose their own working hours had violated Pennsylvania public utility laws.
The only remaining statements, numbers 9 and 18, if viewed in the abstract, also may appear to be damaging to Fram's reputation. However, as the law of Pennsylvania provides, the statements must be viewed in the context in which they were uttered. MacRae v. Afro-American Company, supra; Boyer v. Pitt Publishing Co., supra. Recalling that the nature of the audience hearing the remarks is a key factor in considering whether they are capable of a defamatory meaning, Sellers v. Time, Inc., supra, the court believes that neither statement 9 or 18 are capable of being defamatory in the context in which they were made on "Newsroom."
Remembering that the statement must be more than personally embarrassing or annoying, Scott-Taylor, Inc. v. Stokes, supra, and that it must be more than a "vigorous epithet" or a "rhetorical hyperbole," Redding v. Carlton, supra, we consider whether statement 9 is capable of a defamatory meaning under Pennsylvania law. The July 23, 1970 transcript of "Newsroom" (included herein) reveals that Armstrong's statement was uttered in the following context:
John Roberts: "Mr. Fram did suggest at least that the P.U.C. and Yellow, the P.U.C. might be trying to put Peoples out of business in order to benefit Yellow Cab. Now, what's your reaction to that bit?"
David Armstrong: "Well, ha, that sounds to me a little bit like the sort of paranoid thinking that you get from a schizophrenic, where one is suspicious of everyone else around him because he, himself doesn't conform to the standards of conduct required." Transcript at p. 4.