Jack Wasserman v. Time, Inc

424 F.2d 920

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 1, 1970
• Docket: 23267
• Status: Published

Opinions

PER CURIAM:

On cross motions in appellant’s action for libel in the District Court against appellee Time, Inc., the court granted summary judgment in favor of Time, and dismissed appellant’s complaint. He appeals.

Time publishes a weekly magazine with national circulation. In its issue of October 7, 1966, it published a photograph of seven men sitting at a table in a restaurant in Queens, New York. One of the men was appellant a member of the bar of this court in active practice. Another was Frank Ragano, also an attorney. Accompanying the photograph was a brief article which referred to the occasion as a meeting even “ ‘bigger than Apalachin’ of top Cosa Nostra hoodlums.” The article also referred to the occasion as a delayed lunch which had been interrupted by the police because the District Attorney wanted the men before a grand jury on crime in Queens, that a judge had set bail at $100,000 each, that this had been met, and that the grand jury got only grunts.

Ragano sued Time for libel in the United States District Court for the Middle District of Florida.¹ In that case Time moved for summary judgment on the basis of the freedom of press protected by the First Amendment. Judge Krentzman denied the motion. He held that if the statement was understood as defamatory it was not protected by the ruling announced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), if the statement was false and made with actual malice, that is, with knowledge of its falsity or in reckless disregard of whether it was true or false. He held as to Mr. Ragano that under these criteria the publieation was with actual malice. He accordingly denied Time’s motion for summary judgment and held that it was for the jury to determine whether or not the article was in fact understood as defamatory.

We accept the position of Time, as Judge Krentzman did, that the standards of New York Times v. Sullivan, supra, are applicable even though appellant was not a public official, since he was engaged in a matter of public interest and concern.² However, as more fully appears in the opinion of Judge Krentzman, it is undisputed that Time knew that Wasserman, like Ragano, was an attorney for one or more of the men in the group referred to in the article and was not one of those called before the grand jury and released on $100,000 bail. Time’s position is that by attending the delayed lunch meeting the attorneys were playing a part and were engaging in a demonstration defiant of the law, which justified Time in its editorial decision reached in good faith not to refer to appellant and Ragano as attorneys, but to place them in the same category as the others characterized in the article as we have set forth. Such a decision on the part of the editors of Time, however, would not preclude responsibility for any defamation known to be false or made with reckless disregard of the truth.

The judgment is reversed and the case is remanded for trial on the issues of actual malice, defamation and possible damages.

Reversed and remanded for further proceedings consistent with this opinion.

1 . Ragano v. Time, Inc., 302 F.Supp. 1005 (M.D.FIa.1969), appeal docketed, 5th Cir. 1969.

2 . See eases cited in Ragano, supra, 302 F.Supp. at 1006-1007, n. 1.