APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 74-1867
Before Aldisert, Van Dusen and Hunter, Circuit Judges.
This appeal arises from a defamation suit brought by Samuel R. Dickey against CBS Inc. (CBS) for false statements*fn1 about Dickey made by then Congressman Lawrence G. Williams, and broadcast by CBS's Philadelphia affiliate, WCAU-TV (Channel 10). Sitting without a jury, the trial court held in favor of CBS. 441 F. Supp. 1133 (1977). It ruled that Dickey was a public figure and had failed to prove by clear and convincing evidence that CBS had acted with actual malice, as required and defined by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968). We affirm.
On May 1, 1974, the candidates for the Republican nomination for United States Representative for the Seventh Congressional District of Pennsylvania videotaped a program for Channel 10 called "Update" which was to be broadcast on May 5. Two of the candidates who appeared on the program were Williams and Stephen J. McEwen, the District Attorney of Delaware County. Although Williams was the incumbent, the Delaware County Republican Board of Supervisors,*fn2 popularly known as the War Board, had given its endorsement to McEwen.
The candidates were interviewed on "Update" by two Channel 10 reporters, John Facenda and Dan Cryor. After questioning the other candidates on their views about inflation, Cryor asked Williams, "Mr. Congressman . . . inflation?" Williams responded in pertinent part:
". . . In addition to that, we've had a report prepared by Delaware County tax money, commonly referred to as the Sprague Report, when it should be referred to as the McEwen Report, because this report was bought and paid for by the tax dollars of the people of Delaware County. Now in this report and in the preliminary informational reports appears the information that Phil Toanone made a $25,000 payoff. In the same information a $55,000 payoff was made by the, for the Barclay Square Apartments; and a $20,000 payoff for the Bishop Hill Apartments, and I could go on and on. Now this information has been available to our District Attorney, who says he's not going to go on the War Board. Of course he's not. He lives in Upper Darby and Upper Darby is represented on the War Board by Sam Dickey, to whom these payments have been made. And in spite of the fact that these preliminary informational reports were finished in early, early 1973, some people would have us believe that no final report has been prepared. Now, I say if anybody's going to deny that and try to cover this stuff up, then these reports should be turned over to the Attorney General of the State of Pennsylvania, to be reviewed by him along with the investigators employed by Delaware County for Sprague, as well as the members of the CID, the investigators of the CID, who participated in the preparation of this report." (emphasis added).
Thus, in response to a question about inflation, Williams charged that the Sprague report*fn3 accused Dickey, who was a member of the War Board which had endorsed McEwen, of taking payoffs.
Immediately following Williams' statement, the following dialogue between Facenda and McEwen took place:
Mr. Facenda: I wanted to ask that question of Mr. McEwen. Sprague hasn't yet made public that particular report, and why hasn't he, and do you intend to, well, is that normal procedure, let me put it that way.
Mr. McEwen: Well, John, there is no report. Mr. Williams was invited, in fact he set the time and place in my office last Wednesday, a week ago today, and Mr. Sprague appeared, I appeared, Mr. Williams did not. Mr. Sprague in a conference with the press made perfectly clear at that time that there is no report, that he would expect the report to be ready mid-summer. As far as the reasons why, I guess they would rather, they, they would be more appropriately addressed to Mr. Sprague himself. He indicated at that time, however, he had other matters that required his attention, such as the conviction of the ten or so defendants of murder, including Mr. Boyle more recently in the Delaware County courts, so that Mr. Sprague was brought in 1971 as an independent investigator, as an independent prosecutor, and that concept began in Delaware County so the people of the County could have confidence in the District Attorney's office. Mr. Williams' charges about reports that I have and Mr. Sprague has is just incorrect. There is no such report. And that's that. Now you can take the word of Mr. Sprague or Mr. Williams, and I'll ride any time with Mr. Sprague, that's for sure.
On May 2, 1974, one day after the taping and three days before "Update" was aired, Dickey's attorney, Alvin Ackerman, telephoned Melvin Levine, Director of Technical Operations and Administration for Channel 10, and John L. Essig, Channel 10 News Operations Manager. He told them that the charges against Dickey were false and defamatory, and asked that the May 5 scheduled broadcast of "Update" be postponed pending further investigation of the truth or falsity of Williams' statements.
On May 3, Ackerman wrote to Levine and Essig, reiterating his position. The letter to Levine stated:
In accordance with our telephone conversation yesterday, I wish to confirm that I represent Mr. Samuel R. Dickey. As I told you during that telephone conversation, it is my understanding that WCAU-TV intends to telecast a prerecorded interview with Congressman Lawrence Williams on its "Update' program scheduled Sunday, May 5, 1974. It is further my understanding that false and defamatory accusations against my client were made during the course of this interview and will be further published by the aforementioned telecast. I asked that you withhold the showing of this program pending an investigation of the accusations which, I am certain, you will then find are completely false.
When I called your office late yesterday afternoon to determine what decision, if any, you had made with respect to my client's request, I was referred to Mr. Jack Essig who advised me that he had been made aware of the objection I raised and that a copy of the tape was being forwarded to your legal department for an opinion ...