Duffy and Swygert, Circuit Judges, and Grubb, Senior District Judge.
Plaintiff Pape brought this suit seeking damages for libel. Jurisdiction was based upon diversity of citizenship. The complaint alleged the defendant, Time, Incorporated, publisher of the national weekly news magazine "Time", had defamed plaintiff in its November 24, 1961 issue. The allegedly libelous story reported the issuance and summarized the contents of the United States Civil Rights Commission's 1961 annual report. This Report entitled "Justice" is in book form. Chapter 2 is devoted largely to a description of alleged police brutality to Negroes.
The Time article entitled "Civil Rights -- Dawdling on the Corner", was based largely on Chapter 2 of the Commission's Report entitled "Patterns of Police Brutality." Time reported an incident which it claimed had occurred in Chicago involving brutality by Pape and other police officers while arresting members of a Negro family named Monroe.
In the District Court, defendant moved to dismiss -- in effect, urging the complaint failed to state a claim upon which relief could be granted. The District Court granted the motion. On appeal, this Court reversed. Pape v. Time, Incorporated, 318 F.2d 652. We stated that the subordinate, vital question was whether Time's story of the Commission's Report of the Pape incident was fair comment.
In our opinion, we pointed out that the question then before us was not what the Commission's Report had said about Pape, but rather, what Time's article had said about the Report. We then noted that Time's article told the reader that the Report stated that Pape and others had actually committed certain acts. In fact, the Report had merely said that these acts were allegations in Monroe's complaint.
We stated "Under Illinois law, governing here, Time can be liable if it goes beyond that limit [fair comment] and 'states as a fact that which is not true * * *.'"
We then said "We conclude that Time took the risk, when it reworded parts of the Commission Report, that it might go too far * * *. A jury could find that Time went beyond the limit of fairness here and in doing so was not protected by its privilege of fair comment, and that in making its article more interesting and readable for its audience, it departed from fidelity to the Commission Report."
We decided that the complaint stated a claim upon which relief could be granted, and we reversed and remanded for further proceedings.
Subsequent to remand, the Supreme Court of the United States decided New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686. Thereafter, defendant took Pape's pretrial deposition. Pape testified he had been in the Chicago police department since 1933 and was presently a captain of police. He admitted that he and police officers under his command had gone to the Monroe house on the evening in question. At that time, he was deputy chief of detectives for Chicago. He had been appointed to that position by the Commissioner of Police. His permanent rank at that time was lieutenant of police.
In New York Times, the Supreme Court stated (376 U.S. p. 283, 84 S. Ct. p. 727) "We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action,*fn23 the rule requiring proof of actual malice is applicable."
Plaintiff urges that the Supreme Court thus confined its holding in New York Times to an "elected" public official. Also, that plaintiff was not a "public official" within the meaning of that case because he had neither been elected to his office, nor appointed nor confirmed in his appointment by an elective body.
We do not read New York Times Co. v. Sullivan as being limited to an elected public official. The Supreme Court based its decision, at least in part, upon certain precedents involving appointed officials. In one of the cited cases, the libel plaintiff was a Deputy Superintendent of Police for the city of Detroit. Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719. In another of the cited cases, the plaintiff was the Chief of Police of Los Angeles -- Snively v. Record Publishing Company, 185 Cal. 565, 198 P. 1.
Subsequent decisions to New York Times clearly indicate the courts do not understand the rule announced in that case to be confined to elected public officials. In Henry v. Collins, 380 U.S. 356, 85 S. Ct. 992, 13 L. Ed. 2d 892 (1965), the Supreme Court applied the New York Times doctrine to the ...