On certified appeal to the Appellate Division from the Law Division of the Superior Court.
For affirmance -- Justices Heher, Burling, Jacobs, Francis and Proctor. For reversal in part -- Chief Justice Weintraub. The opinion of the court was delivered by Heher, J. Weintraub, C.J. (dissenting in part).
[29 NJ Page 366] In this action for libel, the jury returned a verdict for the defendants; and the case is here by our certification, sua sponte, of plaintiff's pending appeal from
the consequent judgment to the Appellate Division of the Superior Court.
The defendants are the Newark Morning Ledger Co., as the corporate "printer and distributor" of a daily newspaper styled the Newark Star-Ledger, of "wide circulation within and beyond the State of New Jersey"; Samuel I. Newhouse, "publisher" of the newspaper; Philip Hochstein, "editor"; W. E. Bowman, "assistant publisher"; Paul Tierney, "executive editor"; and Edward Walsh, "staff writer."
The complaint is in two counts. The first charges that on October 23, 1953 the "several defendants acting in concert" published an edition of the Newark Star-Ledger in which this "false and malicious" statement was made of and concerning the plaintiff, Aaron H. Coleman:
"EX-MARINE LINKED TO ROSENBERG
Monmouth radar aide was spy's roommate
McCarthy presses for espionage trial
FORT MONMOUTH -- An ex-Marine officer, suspended from his job at the Fort Monmouth radar laboratories in 1949 after Military Intelligence found 43 classified documents in his apartment, may have been the direct link between the laboratories and the Rosenberg spy ring, Sen. McCarthy said yesterday.
McCarthy said the man at one time roomed with Julius Rosenberg, the executed atom spy, and has admitted that several other known Communists had keys and free access to his apartment during the time the classified material was there.
The senator added he has conferred unofficially with Justice Department officials and they have decided the man can be brought to trial under the espionage act.
The man's apartment was raided by Military Intelligence in 1946, McCarthy said, and 43 classified documents were found."
It is pleaded that the "person [therein] named as Julius Rosenberg had previously been convicted and executed as an espionage agent for Communist Russia"; and that these statements thus published are "false and libelous": (a) "Military Intelligence found 43 classified documents in [plaintiff's] apartment"; (b) "plaintiff 'may have been the direct link between the laboratories and the Rosenberg Spy Ring'"; (c) "plaintiff 'at one time roomed with Julius
Rosenberg'"; (d) "plaintiff 'admitted that several known communists had keys and free access to his apartment during the time the classified information was there'"; and (e) "plaintiff's 'apartment was raided by Military Intelligence in 1946 * * * and 43 classified documents were found'"; and "also the inference that the plaintiff Aaron H. Coleman was guilty of, or had been charged with, or indicted for, the crime of espionage."
And it is alleged that plaintiff "has been [thereby] injured in his good name, fame and credit; has suffered loss of income; was subjected to mental suffering and anguish; has been put to great expense in defending himself against the false charges brought against him; has been and will in the future be deprived of an opportunity to earn his livelihood in the fields of electronics and radar in which he is proficient; and has been subjected to public scandal, infamy and disgrace."
The second count pleads that on December 9, 1953 the defendants in concert published an edition of the same newspaper in which this statement was also "falsely and maliciously" made of and concerning the plaintiff, that is to say:
"EX-FORT AIDE FACES INDICTMENT FOR PERJURY
McCarthy giving details to grand jury
Ex-Monmouth aide [f]aces perjury count
WASHI[N]GTON -- Sen. McCarthy (R.-Wis.) yesterday moved to have a suspended Fort Monmouth (N.J.) radar scientist cited for perjury after his public denials did not jibe with testimony given by executed atom spy Julius Rosenberg.
The Red hunter said he would forward yesterday's testimony of Aaron Coleman of 42 Branchport Ave., Long Branch, N.J., to a federal grand jury here for possible perjury indictments.
Roy Cohn, counsel to the Senate investigations subcommittee, said Rosenberg's testimony while on trial for his life is in 'direct, flat contradiction' to a denial by Coleman that he knew Rosenberg at Ft. Monmouth.
McCarthy then announced a transcript of the Coleman testimony -- with a 'from the grave' rebuttal by Rosenberg -- will be sent to the Justice Department 'with the recommendation that it be submitted to the grand jury.'
Cohn said Rosenberg listed among the college classmates with whom he had contact 'Mr. Aaron Coleman who, subsequent to graduation, I met at Ft. Monmouth.'
McCarthy labeled this 'testimony from the grave' and said it probably wouldn't 'be admissible in a criminal action for perjury.'
But he said he would admit it to the hearing record, which will be sent to the Justice Department. Coleman was called back for further questioning today."
And it was charged that these "statements or inferences" were "false in fact to the knowledge of the defendants, and were published by the defendants maliciously and with the intention of injuring the plaintiff," that is to say: (a) "there was then pending a perjury indictment or 'count' against the plaintiff"; (b) the "facts alleged to have been stated by Senator McCarthy would, if true, have warranted an indictment against the plaintiff for perjury"; (c) plaintiff "was or might have been guilty of the crime of perjury"; (d) plaintiff "is or was a 'Red' (meaning a Communist), or is or was a proper subject for the attention of a 'Red hunter'"; and (e) Senator McCarthy "had in fact 'moved to have (the plaintiff) cited for perjury.'"
The ad damnum clause is in essence much the same as in the first count.
And there were allegations in each count that plaintiff's demand for a "public retraction" of the "libelous statements, in accordance with the statute," had not been met.
The answer admits the publications in question, alleges lack of knowledge or information sufficient to form a belief as to certain averments of the complaint, denies "wide circulation [of the Newark Star-Ledger ] beyond New Jersey" and the allegations of libel and damage, asserts want of malice "in failing to retract," and pleads, by way of separate defenses, truth and justification, privilege and fair comment, that is to say, that certain of the published words made the basis of the first count "are not libelous and do not state a claim upon which relief may be based"; that the words of both articles, separately and in context, "related to matters of public interest and concern and to the public acts of a public employee, and constituted fair comment based upon
facts which were true in substance and in fact"; that the words of the articles "related to, and constituted, a full, fair and impartial report of a legislative proceeding and were printed and published without malice and with an honest belief of their truth," and "with the intent and purpose to inform the public on matters of public interest pertaining to the welfare and safety of the United States of America."
Plaintiff observes in the brief that defendants "did not plead the defense of truth separately as to the first count"; and it is said that by the pretrial order "the issues were whether the news articles were true in substance and in fact and whether the defendants justified same according to law in their answer and proved the same as required by law; and also whether the news articles constituted fair comment."
The given news articles purport to be disclosures attending an investigation of the Army Signal Corps Laboratories at Fort Monmouth, New Jersey, by the Permanent Subcommittee on Investigations of the Committee on Government Operations of the United States Senate acting pursuant to Senate Resolution 40, 83 d Congress. The article of October 23, made the subject of the first count, was testimonially verified by Senator Joseph R. McCarthy, the chairman of the subcommittee, as a fair and accurate portrayal of an authorized public report made by him at a press conference held at Fort Monmouth following an "executive session" of the subcommittee; the article of December 9, pleaded in the second count, relates what is said to have been the proceedings at an open public hearing held the prior day by the subcommittee in Washington, D.C.
It was stipulated below that "there was an official senatorial investigation conducted by one of the subcommittees of the [United States] Senate," and that "the subcommittee was acting under the authority of the Senate in conducting the Fort Monmouth investigation." And it was conceded that the "Committee on Government ...