further position that it would be particularly inappropriate to abstain under a circumstance in which the proposed new cause of action would raise very large and, in defendant's view, defeating federal constitutional issues: "defeating," that is, in the sense that the mandate of the First Amendment would preclude any such new substantive claim under Pennsylvania law.
The basic reliance of plaintiff in seeking abstention is the Supreme Court's decision in Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 3 L. Ed. 2d 1058, 79 S. Ct. 1070 (1959), where a divided Court did affirm the discretionary determination of a federal district court which abstained in favor of a state court's initial determination with respect to a complex and esoteric problem of Louisiana law. The decision to abstain there, Justice Frankfurter made clear, was predicated on the very special character of the issue of local law, eminent domain, and the fact that it arose in a context in which what was largely at issue was the governing authority of a Louisiana city, as against the State of Louisiana. The federal court found itself, Justice Frankfurter noted, caught between the wording of an old but uninterpreted statute, and a contrary sounding opinion of the State Attorney General.
Under that set of highly unusual circumstances, Justice Frankfurter for the majority concluded that abstention was within the discretion of the district court, a discretionary determination which the Court of Appeals had overturned. There was a strong dissent by Justice Brennan, joined by Chief Justice Warren and Justice Douglas. I find no basis in Thibodaux itself, or in the diversity cases that have followed Thibodaux in which the question of abstention has arisen, that would warrant abstention here. There is nothing esoteric about the issue presented. Indeed, it is the novelty of the claim, not its remoteness or entanglement with some arcane Pennsylvania jurisprudence, which characterizes it.
So I deny the motion to abstain.
I turn to the motion to dismiss. There is a claim of res judicata. And there is a claim under the Uniform Single Publication Act that all torts hinging on a particular publication should be treated as one and located in one action.
Upon consideration, I think it would be apparent that there is a sameness about those positions. The very question to be determined is whether the courts of Pennsylvania would find that there is here a separate cause of action, and one that arises not from the original, arguably defamatory -- but demonstrably not malicious -- publication, but which rests on a subsequent and discrete event, or continuing series of events, non-retraction, after the asserted defamer has been sufficiently educated to the falsity of what was originally published.
By the same token, the statute of limitations claim -- which contends that whatever cause of action there might have been accrued at the time of publication, in this instance the 1982 broadcast -- tracks essentially the same ground.
So I will put those defenses aside and go to the question which is the central question, whether the Pennsylvania courts would find a cognizable claim in Pennsylvania jurisprudence.
Counsel have not been able to come up with any case in any American jurisdiction which recognizes a claim sounding in damages for failure to retract what is defamatory. There are two California cases, which counsel have discussed, both of which have denied that there is such a cause of action in California. Kaplan v. Newsweek, 10 Media L. Rep. 2142 (N.D. Ca. 1984) aff'd per curiam, 776 F.2d 1053, 12 Media L. Rep. 1277 (9th Cir. 1985); Beasley v. Hearst Corp., 11 Media L. Rep. 2067 (Ca. Super. 1985). California is a jurisdiction which has the Uniform Single Publication Act. California is also a jurisdiction that has some part of Pennsylvania's constitutional armory. Article 1, section 2 of the California Constitution provides that "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." I do not think that the California Constitution has any language which tracks or closely parallels the Article 1, section 11 language which Officer Coughlin particularly relies on. I have in mind the language, "Every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
It is defendant's position that there is no such right under Pennsylvania law, and that there could not be, because to direct a newspaper or television station or other publisher, that failure to retract what it knows to be defamatory and false would leave it open to a damage verdict, would contravene principles that are established by the Supreme Court as inhering in the First Amendment, and which preclude giving directions to anybody as to what to publish.
Particular authority heavily relied on for this proposition is Miami Herald Publishing Company, Division of Newspapers, Inc. v. Tornillo, 418 U.S. 241, 41 L. Ed. 2d 730, 94 S. Ct. 2831 (1974), in which the Court, speaking through Chief Justice Burger, held unconstitutional a Florida statute giving a political candidate a right of reply in a newspaper's column to material critical of the candidate.
There is language in the Court's opinion which certainly gives substance to the constitutional position of the defendant. I think that language has to be measured against the following concurring language of Justice Brennan, joined by Justice Rehnquist:
I join the Court's opinion which, as I understand it, addresses only "right of reply" statutes and implies no view upon the constitutionality of "retraction" statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction. See generally Note, Vindication of the Reputation of a Public Official, 80 Harv. L. Rev. 1730, 1739-47 (1967).
418 U.S. at 258-259.
This careful reservation by the author of New York Times v. Sullivan, leads me to conclude that the constitutionality of retraction statutes is an entirely open issue, not prejudiced by the determination in Miami at all. My view of the matter is that a carefully crafted retraction statute could well be constitutional. Without undertaking to spell out the details of such a statute, I would simply say that the crux of constitutionality would be to make certain that the liability of the alleged defamer to make retraction would be contingent on -- as a predicate -- a full demonstration to the defamer of the falsity of the alleged defamation. That predicate would mean that the threshold of malice or reckless indifference to truth or falsity, which is the hinge of New York Times v. Sullivan and subsequent cases, would be met.
I do not see as a general matter that there is any unconstitutionality about telling a defamer who, by hypothesis, can be regarded as acquiescing in, or at least by law being forced to recognize, that what has been published has been falsely defamatory -- by requiring that defamer to respond in damages, if the defamer is unwilling to retract.
The concurrence of Justice Brennan, as I've noted, referred to the discussion of retraction statutes in volume 80 of the Harvard Law Review. The summary of the 1973 Supreme Court Term which appeared in volume 88 of the Harvard Law Review referred in the following language to this aspect of Miami Herald :
Miami Herald does not, however, foreclose all methods of expanding access to the press. Although the text of the opinion appears to prohibit a requirement that newspapers publish a retraction after a defamation has been adjudicated, Justice Brennan's brief concurrence suggested that the Court's decision did not necessarily invalidate retraction statutes. An interpretation of Miami Herald which makes compulsory access only presumptively unconstitutional could permit retraction statutes to be upheld if the important state interest in promoting the vindication of personal reputation were deemed sufficiently compelling.