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Pierce v. Capital Cities Communications Inc.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


argued: January 13, 1978.

ALFRED R. PIERCE, APPELLANT,
v.
CAPITAL CITIES COMMUNICATIONS, INC. AND RICHARD KELLMAN

APPEAL FROM the UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of PENNSYLVANIA No. 74-1248.

Adams, Weis, Circuit Judges, and James A. Coolahan, District Judge.*fn*

Author: Adams

Opinion OF THE COURT

ADAMS, Circuit Judge.

We are presented here with a clash between two basic norms in our legal system. One concerns the valued right of a person to be protected against inaccurate statements harming his reputation. The other deals with one of the most indispensable freedoms in a democratic state, namely, that of untrammeled expression regarding the conduct of a public official. Although the reconciliation of these principles in the context of a particular factual configuration seldom will be easy, it is essential to the healthy survival of each. That is the task which this Court is now called upon to perform.

The plaintiff's objection to the publication he challenges - a television broadcast - is that it gave rise to innuendoes which are defamatory of him. Specifically, Alfred R. Pierce claims that a broadcast by Capital Cities Communications, Inc., owner and operator of a Philadelphia television station, WPVI-TV, and Richard Kellman, a reporter for the station, defamed him by creating the false impression that he had misused his public position in seeking private pecuniary gain. In response, the defendants urge that the First Amendment analysis in the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and in succeeding decisions, which protect speech about public officials absent a showing of "actual malice," bars recovery in the present situation.*fn1

A.

Pierce was the Mayor of Camden, New Jersey, for a ten-year period ending in 1969, and a Commissioner of the Delaware River Port Authority from June 4, 1962, until May 11, 1970. From January 1, 1969, until May 11, 1970, he was Chairman of the Authority.*fn2

On November 30, 1973, more than three years after Pierce was last a member of the Port Authority, WPVI-TV televised a program, entitled "Public Bridges and Private Riches," which explored the activities of the Port Authority and, in particular, the performance of Ralph Cornell, then its Chairman.*fn3 During the broadcast, Pierce was named approximately five times in his capacity as former Camden Mayor and Port Authority Chairman.

Since Pierce's position is that the television program as a whole was defamatory with respect to him, even if no single remark in it was such, it is necessary to set forth in some detail its major aspects. The introduction included a statement that, while preparing for the broadcast, "Action News reporter, Richard Kellman" travelled "the bridges of the Delaware River Port Authority and the high speed road to profit " for ninety days.*fn4 The structure of the Port Authority, the cost of its projects and the use of tolls to pay its debts were then described.

Following the introduction, a segment of the telecast dealt with a cost increase for steel lattice work essential to building the superstructure of the Commodore Barry Bridge. A controversy in 1969 among the members of the Port Authority, relating to the desirability of seeking new bids on the contract for steel, was elaborated, and statements by two participants in the dispute, including Ralph Cornell, were juxtaposed. Then Kellman displayed the minutes of a Port Authority meeting held on September 17, 1969, which recorded the votes on a motion for new bids on the steel contract, and he stated that "New Jersey commissioners voting 'no' included Chairman Alfred R. Pierce and the present Chairman Ralph Cornell." At the conclusion of this portion of the program, Kellman narrated:

And so . . . as the toll-payers shelled out nickels, dimes and quarters to pay for the project - some Port Authority commissioners saw an opportunity for enormous profits, profits on land deals made possible by the very bridge motorists would be paying for well into the year 2000.

After a pause for a commercial announcement, Kellman noted that there was a close relationship between the construction of the Commodore Barry Bridge, which runs from Chester, Pennsylvania to Bridgeport, New Jersey, and the increase in land values in the Bridgeport area. The mayor of Bridgeport was quoted as saying that the values of land in the town had risen directly as a result of the construction of the bridge. As to Pierce's own interest in land in the vicinity of the Commodore Barry Bridge, Kellman remarked:

Among the properties with identifiable owners . . . is this 90-acre plot of Route 322 . . . where the expressway linking Routes 130 and 295 will be built. The deed is recorded at the Gloucester County Courthouse in Woodbury. It shows the property is owned by Alfred R. Pierce . . . former Mayor of Camden and Port Authority Chairman at the time the Barry bridge was approved. On the day Pierce bought his 90 acres . . . he also bought 22 acres more . . . just across the road . . . and on the same day . . . in April of last year . . . he sold the 22 acres to a corporation that also has the deed to 67 acres farther up the road where Route 322 crossed Route 295.

The broadcast proceeded to focus on the development of the Lindenwold Hi-Speed Line, a mass transit facility that was built and is operated under the auspices of the Port Authority and runs from Philadelphia to Lindenwold, New Jersey. Kellman indicated that " there's talk of extending the Hi-Speed Line past Lindenwold to the Jersey Shore" in the event of the continued expansion of the area, residentially and commercially. Certain land near the Ferry Avenue station of the Lindenwold Hi-Speed Line, described as "prime commercial property," was said to be owned by "a combine called ABJ, Inc.," whose shareholders "include former Camden Mayor and Port Authority Chairman Alfred R. Pierce."

Kellman mentioned a third parcel of real estate in which Pierce was portrayed as having an interest, which was said to be located in Woodbury, New Jersey, near a proposed extension of the Hi-Speed Line. As Kellman said:

A Port Authority study recommended the Gloucester route to Woodbury where there are five acres of land owned by a corporation that includes as shareholders former Camden Mayor and Port Authority Chairman Alfred Pierce and former Port Authority Commissioner John Crisconi of Philadelphia.

In mid-October, Port Authority engineers confirmed their recommendation that the Woodbury station would be built here, adjacent to the propoerty [sic] owned in part by Pierce, Crisconi and Cornell.

In the aftermath of those remarks, Kellman questioned Cornell about the "guidelines" he followed in his work in order to avoid a conflict of interest, and Cornell replied that he adhered to "the ten commandments." A prominent Philadelphia banker, John Bunting, who has since been appointed to the Port Authority, was quoted as saying that, in his view, "certainly buying land raises doubts."

Kellman then explained that the director of bridges for the Port Authority, Andrew Ferenz, had been fined and given a suspended jail sentence for "using Port Authority building materials on his own home." Ferenz was described as the brother-in-law of "former Camden Mayor and Port Authority Chairman, Alfred R. Pierce."

On May 16, 1974, five-and-one-half months after the airing of the broadcast, Pierce filed a complaint, grounded on diversity jurisdiction, charging that the television program falsely "accused plaintiff of acting in his own selfish interest and in abuse of his public trust." Pierce also alleged that harmful "innuendoes" arising from it subjected him to "public ridicule, contempt, and humiliation," injuring his "good name and reputation" and thereby defaming him. He sought compensatory damages in the amount of two million dollars, as well as punitive damages for the same sum.*fn5 After the defendants filed an answer, there was extensive pre-trial discovery. On the basis of the information acquired during discovery, the defendants moved for summary judgment.

The district court, in an opinion and order dated February 7, 1977, 427 F. Supp 180, held that the application of the principles enunciated in New York Times required a grant of summary judgment on behalf of the defendants, for Pierce had not set forth sufficient facts showing, as a public official is required to do, that the publication in question, even if defamatory, was made with "knowledge that it was false or with reckless disregard of whether it was false or not."*fn6

B.

Pierce urges that the district court erred in not fully considering the harmful innuendoes, or the inferences drawn from context, that necessarily flowed from the language and composition of the television broadcast viewed as a whole.*fn7 If one takes account of such innuendoes, Pierce submits, it can only be concluded that the requirement of a showing of "actual malice" established by New York Times does not bar recovery here.

It is maintained by Pierce, for instance, that the discussion in the broadcast of the 1969 vote by members of the Port Authority over rebidding a contract for steel to be used in constructing the Commodore Barry Bridge raised the incorrect implication that Pierce had cast his vote in order to expedite the construction, and thereby accelerate his realization of profits from the resale of land he had acquired near the bridge. Also, Pierce charges that the broadcast impliedly suggested - again, falsely - that he had used knowledge gained as a public official in making his private acquisitions of real estate. Further, Pierce insists that the opinions expressed in the program, such as by John Bunting, to the effect that land purchases by Port Authority Commissioners are improper, and the program's title, "Public Bridges and Private Riches," tended to defame him contextually, although admittedly not literally.*fn8

Defendants' knowing or reckless disregard of the falsity of the publication, Pierce suggests, may be inferred from the fact that the broadcast, while it mentioned him in connection with three real estate transactions, did not explicitly negate the implication that Pierce had utilized insider information in buying the land in question. He points in particular to Kellman's deposition and to memoranda written by Kellman to his superiors during the preparation of the program which, Pierce claims, demonstrate that the reporter fully recognized that Pierce's purchases occurred after he had left office and after the public had been told of the Port Authority projects in question - even though, in the broadcast, the time sequence was not made clear.*fn9

In response, the defendants press the point that Pierce has not been able to identify any specific statement in the telecast relating to him that is false other than the comment - which defendants claim is immaterial in any event - that he is the brother-in-law of Andrew Ferenz.*fn10 Defendants note that, in this appeal, Pierce appears to have abandoned the argument that the remark about Pierce's relationship with Ferenz may be construed as having defamed him. Even so, defendants stress, there is no indication in the record that they knew or had reason to know of the falsity of their identification of Ferenz as Pierce's brother-in-law.*fn11

Further, the defendants contend that the various, allegedly harmful "innuendoes" ascribed to the broadcast are incapable, under New York Times and succeeding decisions, of giving rise to actionable defamation. With respect to the program's title and its introduction, which purportedly paint a picture of less-than-scrupulous activity by members of the Port Authority, the defendants maintain that such language should be perceived as the kind of hyperbole or colorful phraseology that is protected by the First Amendment. And as to the observation by Bunting that in his view purchases of land by Port Authority Commissioners are questionable, defendants suggest that such a statement is precisely the sort of opinion about public affairs which should be accorded constitutional protection.

Also, regarding the plaintiff's contention that defamatory innuendoes arose from the defendants' failure to negative the possibility that Pierce acted improperly by purchasing three parcels of real estate, the defendants emphasize that such a position depends fundamentally on an interpretation of various aspects of the broadcast, not on anything directly said in it. And when the cited innuendoes are taken in turn, it is argued, the constitutional standard cannot be met.

Specifically, as to the supposed "innuendo" arising from the discussion of the vote regarding rebidding of the contract for steel for the Commodore Barry Bridge, defendants argue, first, that nothing was said in the program to the effect that Pierce voted "no" on the rebidding proposal in order to speed up the receipt of profits from the sale of land near the bridge. Moreover, it was stated that Pierce's purchase of real estate near the bridge occurred in "April of last year," which would have been in April of 1972, the year prior to the broadcast. Since the controversy about the rebidding of the steel contract occurred in 1969, defendants argue, it is plainly unreasonable to conclude that the broadcast created the misimpression that Pierce owned the land on the occasion of the crucial vote.

Because the program did include the time sequence of the vote on the steel contract and of Pierce's acquisitions of land near the Commodore Barry Bridge, defendants declare also that it cannot be claimed that the broadcast raised the inaccurate implication that Pierce approved the location of the Commodore Barry Bridge at the time that he owned land near where the bridge ultimately was built. Again because the relevant timing was stated in the broadcast, defendants further contend that it is unreasonable to conclude that it created the false impression that Pierce took advantage of insider information when he initially bought the real estate near the Commodore Barry Bridge.

As to the other two parcels of land in which Pierce had an interest - those near an existing, as well as a proposed, station of the Hi-Speed Line - defendants concede that the program did not provide the time sequence of official action and of Pierce's purchases. Despite that omission, defendants would have us affirm the district court's ruling. For, they stress, Pierce was said to have owned the two plots in question jointly with Ralph Cornell, then the incumbent Chairman of the Port Authority. Since such a revelation is the sort of comment about a public official that should be accorded protection under the First Amendment, and since some compression of facts relating to an item covered in a television broadcast is inevitable, defendants argue that no policy of the First Amendment would be served, and key ones would be undermined, by concluding that the statements about the Ferry Avenue and Woodbury real estate constituted actionable defamation.

Regarding Kellman's deposition and his memoranda to his superiors, defendants insist that they fail to display the existence of any knowing or reckless disregard of falsity - but rather indicate only that the defendants wondered whether to charge the plaintiff with a conflict of interest, and decided ultimately not to do so.*fn12

C.

In resolving this dispute, we initially consider the governing tort law in order to ascertain whether, in the present situation, defamation has occurred. For before investigating whether the constitutional principles of New York Times operate to bar recovery, it would appear appropriate to ask whether a state tort has arisen in the first place. Moreover, since our jurisdiction over the case is predicated upon the diversity of the citizenship of the parties, under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938) and its progeny, we are admonished to start with the applicable state law.*fn13

A threshold question in this regard is which state's law should be utilized. The parties indicated, at oral argument, that the law of Pennsylvania governs. Such a position apparently is bottomed on the fact that the business activities of the television station and the reporter charged with defamation are based in Philadelphia and, as a result, that jurisdiction has an abiding interest in the lawsuit.*fn14 In the absence of any suggestion that there exists here a true conflict of law - that is, that Pennsylvania law differs from that of another interested forum having a strong competing stake in the case arguably outweighing Pennsylvania's interest - there is no occasion to diverge from the parties' position. This being so, we must decide what resolution a Pennsylvania court would reach with regard to the issues in the present appeal.

Pennsylvania has adopted the definition of defamation incorporated in the Restatement, Torts § 559 (1938), which provides:

A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.*fn15

In Pennsylvania as well as under the Restatement, whether or not language can reasonably be construed as defamatory is a question of law to be determined by a court.*fn16

Ascertaining whether a communication is capable of a defamatory meaning depends upon what a recipient "correctly, or mistakenly but reasonably, understands" that the statement was intended to express.*fn17 It is established that a court should not scrutinize simply the literal references of the language in question, but also should weigh the words "together with their context." Restatement, Second, Torts § 563, Comment (d). In Pennsylvania, the burden of proving that a statement is defamatory - as well as establishing its publication by the defendant, its application to the plaintiff, and the recipient's understanding of its defamatory meaning - is on the plaintiff.*fn18

Under Pennsylvania cases handed down after the Supreme Court decided New York Times, the definition of defamatory speech has been held to include consideration of the constitutional principles articulated in that seminal opinion. Thus, even though in analyzing this case we start with Pennsylvania tort law, no rigid line of demarcation may be maintained between state law rules and constitutional norms, for both are intermixed in the Pennsylvania precedents.*fn19

In Redding v. Carlton,*fn20 it was concluded that the challenged allegations, which were published during a campaign to prevent the purchase of a proposed building site for a township headquarters and referred to the town supervisor's dual role as supervisor and landowner, were not libelous. The defendant had complained that the supervisor's position evidenced a "conflict of interest at the very least, and perhaps much more. " In analyzing whether such a remark may be said to be defamatory, the Pennsylvania court declared that "(free) speech would be endangered if innocuous statements were found capable of possessing a defamatory meaning." It is necessary, the court underscored, to decide whether a defamation has occurred in light of the principles enunciated in New York Times - namely, that our country has a "profound commitment" to the notion that debate on public matters should be "uninhibited, robust, and wide-open," and that our nation's political and moral undertaking presupposes that some "unpleasantly sharp attacks on government and public officials must be protected."*fn21 As the court in Redding elaborated:

To prevent a chilling effect on free speech, the Supreme Court of Pennsylvania has held that 'statements which represent differences of opinion or are annoying or embarrassing, are without more not libelous. ' Bogash v. Elkins, . . . 405 Pa. 437, 176 A.2d 677, 679 (1962). Neither is a statement libelous which is 'no more than rhetorical hyperbole ' or 'a vigorous epithet ' used to describe what the publisher believes to be another's extremely unreasonable position. Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 14, 26 L. Ed. 2d 6, 90 S. Ct. 1537 . . . (1970).*fn22

The Redding court, in view of these guiding postulates, determined that the challenged statement that the town supervisor's role evidenced a conflict of interest "at the very least, and perhaps much more " was a remark characterized by "the type of rhetorical hyperbole common to American politics," and as such it is protected by the First Amendment.*fn23 With regard to the only misstatement in the defendant's publication - namely, the assertion that the plaintiff's property was adjacent to, rather than near, the proposed building site - the Redding court noted that it is "minor," and moreover that it is incapable of bearing a defamatory meaning since it is analogous to the "rhetorical hyperbole" or "vigorous epithet" that commonly is heard in American public life.*fn24

Additionally, while avowing that the defendant's comments dealt, at least in part, with factors motivating the plaintiff's actions, Redding emphasized that errors of fact about such matters are almost unavoidable. Redding embraced the comment in Sweeney v. Patterson*fn25 - which the Supreme Court also quoted with approval in New York Times - where it was stated that "(e)rrors of fact, particularly in regard to a man's mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken from the field of free debate."*fn26 Redding concluded that to hold that the questioned publications were capable of a defamatory meaning would unduly infringe upon "the field of free debate."*fn27

On the basis of the analysis in Redding, which appears consistent with the precepts articulated by the Pennsylvania Supreme Court in Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677, 678-79 (1962), and Volomino v. Messenger Publishing Co., 410 Pa. 611, 189 A.2d 873, 874-75 (1963), we have concluded that the Pennsylvania courts would hold that the broadcast of concern here, in terms of both the specific statements in it as well as their innuendoes, is incapable of a defamatory meaning.

The only specific error in the program was a comment about Pierce's relationship with Ferenz, which suggested that the two men had a closer family tie than in fact they had - although there was some such connection.*fn28 That misstatement certainly is a minor matter in the context of the broadcast in its entirety. For the burden of the discussion of the relationship between the two men was that some interlocking connections existed among the individuals involved in Port Authority activities, not that any particular relationship obtained.*fn29

Further, in response to Pierce's objection to the implications of some of the program's language that may be said to constitute hyperbole - such as the title, and the introductory remarks that the public should "hold onto your dollars" and that the reporter investigating the story pursued the "high speed road to profit" - it should be noted that such language would appear to fall squarely within the reach of the principles elaborated in Redding. Moreover, since Redding grants protection to the bald assertion of a conflict of interest, it would seem a fortiori that the Pennsylvania courts would safeguard the statements about Pierce's land purchases, which are said by plaintiff only to carry the implication of a conflict of interest.*fn30

Thus, under Pennsylvania law no defamation has occurred in the present situation.

D.

But even if we have misconstrued the Pennsylvania law of defamation, the result in this appeal would not be altered. This is so since, even if the publication here were held to be actionable under state law, it nevertheless would be privileged on constitutional grounds.*fn31

Discussions by the Supreme Court of the constitutional privilege for defamatory speech about public officials have reflected a keen awareness that this area of the law entails a definite tension between two fundamental ideals, and that an accommodation between them must be struck in each case. On the one hand, our legal system recognizes the principle that an individual should be protected against incorrect statements which dishonor his name.*fn32 Indeed, " (society) has a pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U.S. 75, 86, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1966).*fn33 On the other hand, our courts must adhere to the notion, expressed in New York Times and the cases following it, that free expression about public matters on the part of citizens and the press must be zealously guarded.*fn34

The starting point for an attempt to accommodate both of these precepts, of course, is the Supreme Court's elaboration in New York Times of the constitutional framework for defamation analysis. Prior to New York Times, the Supreme Court had announced in dicta that libelous words were not safeguarded by the Constitution.*fn35 The Court's approach was dramatically altered in 1964 by New York Times which, in the words of one commentator, "created an entirely new system of liability for defamation."*fn36

In reversing a decision by the Alabama courts holding a publisher strictly liable for defamatory falsehoods in an advertisement soliciting funds for the civil rights movement,*fn37 New York Times took as its basic premise the central meaning of the First Amendment, which was said to be "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."*fn38 The majority rejected the position, advocated by three concurring Justices,*fn39 that speech defaming public officials should be accorded absolute immunity.*fn40 Instead, the Court established for such speech a qualified privilege defeasible only on proof of "actual malice" on the part of a defendant.*fn41 "Actual malice" is not at all synonymous with common law malice, which includes spite or ill-will.*fn42 What is meant by the term in the defamation context is either that the defendant knew of the falsity of the communication in question or that he published the comment in reckless disregard of its truth or falsity.*fn43

New York Times thus stands, inter alia, for the proposition that a calculated lie about a public official, or a statement uttered out of reckless inattention to its falsity, is beyond the pale of constitutional protection. See Garrison v. Louisiana, 379 U.S. 64, 75, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964). In laying down this standard, the Court took pains to guard against too sweeping a definition of actionable defamation. It stressed that, as a general matter, "erroneous statement is inevitable in free debate,"*fn44 and that speakers or publishers, if exposed broadly to liability for defamation, might well engage in self-censorship. Such self-checking could be expected to follow as much from the threat of a sanction as from the actual enforcement of one,*fn45 for not only is it frequently difficult to prove the truth of a defamatory communication,*fn46 but also the risk incurred in attempting to establish truth before fallible juries or judges is considerable.*fn47 Consequently, New York Times determined not to shield speech about public officials merely on a case-by-case basis, but rather to enunciate a general protective principle designed to leave room for courts to guard the individual against malicious attacks on his reputation and, at the same time, to prevent undue "chilling effects" on such expression.*fn48

The meaning of the Supreme Court's "actual malice" requirement was amplified in Garrison v. Louisiana,*fn49 where the Court distinguished between an "honest utterance, even if inaccurate," which is to be constitutionally safeguarded, and the "use of calculated falsehood," which is not.*fn50 The knowing and deliberate lie about a public official is not accorded First Amendment protection, the Court in Garrison indicated, because it is "at odds" with the norms of a democratic polity and with the requisites of "orderly" social, political and economic change.*fn51 Garrison invoked as support for this idea the dictum in Chaplinsky v. New Hampshire*fn52 that certain types of utterances, such as a conscious prevarication about a public official, "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."*fn53

In the present case, as has been noted, the only falsity identified in the broadcast is a statement regarding Pierce's relationship with Ferenz. However, as to this remark, there is no indication that any calculation or deliberateness on the defendants' part entered into the act of publication. Because there was a basis on which Kellman could have reasonably believed that Pierce was Ferenz' brother-in-law,*fn54 the comment is most properly understood as an "honest utterance, even if inaccurate," and therefore as constitutionally protected.

Further, the Supreme Court has made it clear that the "recklessness" component of "actual malice" cannot be inferred simply from the failure to act in conformity with the conduct of a prudent or reasonable person. In New York Times itself, the Court held that the plaintiff did not satisfy his burden of proof because the record did not demonstrate that the publisher was aware of the likelihood that he was circulating false information. That was the case even though it might have been negligent not to have checked the accuracy of the copy of the advertisement against stories in the newspaper's own files.*fn55 And in St. Amant v. Thompson,*fn56 the Court emphasized that in order to establish "actual malice", one must show more than negligence:

Consequently, in determining whether a defendant has been reckless, the operative inquiry is whether he published the statement even though he "in fact entertained serious doubts as to the truth of his publication."*fn58

There is no indication in the present record that the defendants "entertained serious doubts" about the truth of any remark in the broadcast. As defendants have pointed out, the Kellman memoranda and the other materials adduced during discovery on which Pierce seeks to rely do not demonstrate that they knew that utterances in the broadcast were of questionable validity. To the contrary, these memoranda establish that they considered whether to charge Pierce - and Cornell - with utilizing insider information for private gain, and decided on the basis of the data before them not to do so.*fn59

Moreover, the publication of hyperbole, even if caustic and irritating, cannot by itself support the inference that the publisher evidenced "actual malice". In Greenbelt Cooperative Publishing Assn. v. Bresler,*fn60 the plaintiff complained that he had been defamed by statements reported in defendant's newspaper which charged him with "blackmail."*fn61 Notwithstanding the use of such an inflamatory term, the Supreme Court held that "as a matter of Constitutional law, the reference to 'blackmail' in these circumstances was not slander when spoken, and not libel when reported" in the newspaper. The rationale for this result was that "even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable." The Court refused to permit the imposition of liability on the newspaper in such circumstances because it would "subvert the most fundamental meaning of a free press, protected by the First and Fourteenth Amendments."*fn62

It appears that, in the situation under consideration, some of the statements in the program's introduction as well as its title would be construed by a reasonable television viewer as being essentially hyperbole. As such, they must be accorded the full measure of constitutional protection mandated by Greenbelt.*fn63

The further claim by Pierce is that "actual malice" may be inferred from the fact that the defendants published remarks giving the impression, without saying so explicitly, that he was engaged in a pattern of using insider knowledge for private gain through real estate transactions - even though, in fact, he had purchased the land in question after leaving public office. That argument, by its own terms, concedes that no specific statement about the land transactions was incorrect. It rather rests upon the notion that "actual malice" is established by the fact that the defendants failed to rule out the possibility that Pierce used insider knowledge when buying land whose value was affected by decisions of the public agency on which he sat.

Pierce's contention thus hinges primarily on the negative implications said to flow from the program's treatment of his ownership of the three plots of land. Regarding the first parcel, however, as has been noted, the broadcast did provide the correct time sequence of Pierce's membership on the Port Authority and his later purchase of the real estate. In light of the fact that the publication was literally correct, it cannot fairly be said that, from the discussion about the land near the Commodore Barry Bridge, one may infer "actual malice" on the part of the defendants.

Mere lack of a statement of such time sequence as to the other two parcels of land in which Pierce had an interest cannot be held to establish the existence of "actual malice" on the defendants' part. For the remarks about Pierce's interests in the real estate on Ferry Avenue and in Woodbury explicitly included the phrase " former Camden Mayor and Port Authority Chairman." (Emphasis supplied). We cannot agree with the plaintiff's suggestion that "actual malice" is demonstrated simply by the fact that the modifier "former" was not placed before the title "Port Authority Chairman," but was situated before "Camden Mayor." Although there is arguably some ambiguity in the program regarding Pierce's membership on the Port Authority at the time of the real estate transactions, that alone, in our view, does not suffice to sustain the burden of establishing with convincing clarity knowing or reckless disregard of falsity.*fn64

Beyond the details relating to the various statements in the broadcast are fundamental principles of First Amendment jurisprudence compelling the conclusion that no actionable defamation occurred here. Since Pierce was a public official and did have, or at least appeared to the public to have, "substantial responsibility for or control over the conduct of governmental affairs,"*fn65 his claim lies within the heartland of defamation actions covered by New York Times. In addition, there is no doubt that the remarks in the telecast about Pierce were pertinent to his official conduct, for "anything which might touch on an official's fitness for office is relevant."*fn66 The fact that the program was not shown until after Pierce was out of office does not undermine these points.*fn67 Consequently, the strong First Amendment policy of protecting the free flow of ideas about public officials and their activities - even when some vehement or unpleasantly sharp comments may be involved - is fully operative.

In view of these circumstances, and because the media such as are involved in this case personify the First Amendment values in the free exchange of ideas and open debate about public officials,*fn68 the publication challenged by Pierce should be protected by the First Amendment. Any other conclusion would have "disquieting implications for criticism of governmental conduct,"*fn69 for it would likely lead to the kind of chilling effect on the media that New York Times and its successors directly seek to avoid.*fn70

E.

Thus, under Pennsylvania law as well as under federal constitutional standards, there is no basis for holding that the district court erred in granting the defendants' motion for summary judgment. Consequently, the court's judgment will be affirmed.


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