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Barasch v. Soho Weekly News Inc.

Decided: January 31, 1986.

GEORGE BARASCH, PLAINTIFF-APPELLANT,
v.
SOHO WEEKLY NEWS, INC., A CORPORATION, JOHN LEESE, ROBERT KARL MANOFF, JOHN FRIEDMAN AND ERIC NADLER, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Dreier, Bilder and Gruccio. The opinion of the Court was delivered by Dreier, J.A.D.

Dreier

Plaintiff has appealed from a summary judgment in favor of defendants predicated on a determination that plaintiff was a public figure as to whom the actual-malice libel standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), was applicable. The trial judge also held that plaintiff had offered no evidence upon which defendants' selection of material concerning plaintiff and its manner of presentation could have been found maliciously defamatory.

Plaintiff George Barasch alleged in his complaint that he was libeled by an article published in the Soho Weekly News on July 15, 1981. After attempts to secure a retraction, plaintiff filed his complaint in October 1981 against the publisher, Soho Weekly News, Inc.; the managing editor and two reporters. In August 1984 plaintiff was granted a partial summary judgment ruling the article to be defamatory per se as to plaintiff in that it was "not reasonably susceptible of a nondefamatory interpretation." The judge hearing the earlier motion summarized the innuendo claimed by plaintiff from the quoted article as "imputing commission of a crime, . . . imputing dishonesty, fraud or

cheating . . . [and] . . . reflecting adversely on plaintiff's office, business or employment."

Plaintiff is self-employed, but between 1936 and 1963 he had been associated with labor unions, specifically the Allied Trades Council, Local 815. He had served in the position of Secretary/Treasurer of Local 815, and as President of the Allied Trades Council. He also functioned as the Administrator of the Allied Welfare Fund from 1954 to 1978 and of the Union Mutual Fund from 1955 through the institution of this litigation. In addition, plaintiff was President of The Cromwell Research Foundation from 1956 to 1966 and The Chemical Research Foundation from 1957 to 1966. Both are charitable foundations. He was also President of the New York Cardiac Center, an institution engaged in medical research, and was active with the Center from 1950 through the time of trial.

On July 15, 1981, defendant Soho Weekly News printed an article concerning the activities of Accuracy in Media (AIM), a nonprofit organization devoted to monitoring the media. The article reviewed the history of AIM and stressed the financial support of the organization by a major oil company and the Teamsters' Union. The article described AIM's fourth annual conference, a two-day session at which prominent political and media personalities appeared. The article noted that the organization issues a twice-monthly newsletter reaching over 30,000 dues-paying members and that a radio commentary program by the organization's founder and chairman, Reed Irvine, a former economist for the Federal Reserve Board, is broadcast by 30 radio stations. Irvine's newspaper column is syndicated in 100 newspapers. The publication further stated that plaintiff, together with Ernest Lefever, who had been a candidate for Assistant Secretary of State for Human Rights and Humanitarian Affairs, and Arnaud de Borchgrave, a former foreign correspondent for Newsweek and coauthor of The Spike, received awards at the conference.

The thrust of the article, however, concerned the financial support for AIM, and noted that the Allied Educational Foundation, "an elusive entity closely tied to Local 815 of the International Brotherhood of Teamsters and to the Allied Trades Council," was a substantial donor, having given $50,000 to AIM to fund a speakers bureau. Plaintiff was then identified as the "administrator of the foundation, former President of the Allied Trades Council and former Secretary/Treasurer of Teamsters' Local 815." What followed was the alleged defamatory material, purportedly a summary of a 1966 report of the Senate Subcommittee on Investigations. The alleged defamatory statement reads:

Perhaps the most intriguing AIM donor is the Allied Educational Foundation, an elusive entity closely tied to Local 815 of the International Brotherhood of Teamsters and to the Allied Trades Council. All three organizations are headquartered in the same office in a two-story brick building at 467 Sylvan Avenue in Englewood Cliffs, New Jersey.

According to Irvine, in December 1980 the foundation 'made a gift of $50,000 to Accuracy in Media to fund a speakers bureau' that has paid to send Irvine and other AIM officials across the country. The foundation also cosponsored the recent annual conference.

George Barasch, administrator of the foundation, former president of the Allied Trades Council and former secretary-treasurer of teamsters Local 815, received an award at the conference, right before Lefever and deBorchgrave.

In a 1966 report, Barasch was accused by the Senate Subcommittee on Investigations, then under the chairmanship of Arkansas Senator John McClellan of diverting almost $5 million of union and welfare pension funds to private corporations in the continental United States, Puerto Rico, and Liberia controlled by him and his brother-in-law. Barasch's activities were also investigated by the FBI and the U.S. Attorney for the Southern District of New York, but he was never indicted.

The Allied Educational Foundation, according to Lewis G. Bernstein, one of its four current trustees, was founded by Barasch. Internal Revenue Service files show that it is a tax-exempt organization, started shortly after Barasch agreed to return to the unions the funds from the private corporations he had set up. According to Bernstein, the foundation, supported by employer contributions, is part of a benefit fund of the Allied Trades Council and Teamsters Local 815, and gives scholarships to the children of union members and sponsors conferences on a wide range of issues. The contribution to AIM was arranged by AIM president Murray Baron, former vice-president of the New Jersey CIO and a founder of the Liberal party in New York State and an old friend of Barasch's.

There are two issues before us. First, we must determine whether the trial court applied the correct standards in holding that plaintiff was a public figure. Second, we must determine whether plaintiff properly had placed before the trial judge facts upon which a jury could find that the article was defamatory to the standard required by plaintiff's status.

I -- Public Figure Status

New York Times Co. v. Sullivan, supra, left open the issue of who would be considered a public figure for the purposes of the rules there established. The history of the doctrine was reviewed by Justice Schreiber in his dissenting opinion in Lawrence v. Bauer Pub. & Print. Ltd., 89 N.J. 451, 470-474 (1982), and need not be repeated here. It is clear, however, that as of Gertz v. Welch, 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), the New York Times rule protected the press as to statements concerning both personalities generally known to the public and also limited public figures who had thrust themselves "into the vortex of [a] public issue," or who had "engage[d] the public's attention in an attempt to influence its outcome." 418 U.S. at 352, 94 S. Ct. at 3013, 41 L. Ed. 2d at 812. Although the plaintiff in Gertz had been active in community and professional affairs, had published books and articles on legal subjects and "was consequently well known in some circles, he had achieved no general fame or notoriety in the community." 418 U.S. at 351-352, 94 S. Ct. at 3012-B, 41 L. Ed. 2d at 812. The Court distinguished between general and limited public figures as follows:

We would not lightly assume that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. [418 U.S. at 352, 94 S. Ct. at 3013, 41 L. Ed. 2d at 812].

The trial judge here determined that plaintiff was both a general and limited public figure. At least as to the finding of a general public figure, we are constrained to disagree. Applying the standard just quoted, the trial judge could only have considered plaintiff to have been a ...


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