United States District Court, Northern District of Illinois, E.D
December 8, 1970
ELMER GERTZ, PLAINTIFF,
ROBERT WELCH, INC., DEFENDANT.
The opinion of the court was delivered by: Decker, District Judge.
In this motion for judgment notwithstanding the verdict, or in
the alternative, for a new trial, defendant Robert Welch, Inc.
seeks to reverse the verdict of a jury which found him
responsible for the libel per se*fn1 of plaintiff Elmer Gertz.
Damages of $50,000 were awarded.
The libel was published as the lead article in the defendant's
monthly magazine American Opinion under the title "Frame-Up" with
a sub-title "Richard Nuccio and the War on Police". Reprints of
the article were made available immediately and were widely
circulated. Nuccio was a Chicago policeman who was charged with
the murder of Ronald Nelson, and the article dealt with Nuccio's
murder trial and subsequent conviction. Gertz, an attorney, had
been retained by the Nelson family. He represented them at the
deceased's inquest, and he filed suit in their behalf in federal
court. At page 12 of the 19 page article Gertz is labeled a
"Leninist * * * who now turns up as lawyer for the Nelsons," and
at page 17 he is described as a "Communist fronter".
One of the principal defenses at trial, and the basis for this
motion, was that Gertz was a "public official" within the meaning
of New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84
S.Ct. 710, 11 L.Ed.2d 686 (1964), or more properly, that he was
a "public figure" within the meaning of Curtis Publishing Co. v.
Butts, 388 U.S. 130, 153-155, 87 S.Ct. 1975, 18 L.Ed.2d 1094
(1967), thus precluding a recovery of damages for a defamatory
falsehood unless actual malice is shown. In denying cross motions
for summary judgment, the court refused to hold as a matter of
law that defendant had published with actual malice. Memorandum
Opinion of September 16, 1970. Instead, factual issues raised in
the affidavits required that the matter be submitted to a jury.
At trial, Gertz testified as to his stature and reputation in
the community. He is a prominent attorney in Chicago, having
represented clients who sometimes command a wide following in the
press and media. He has written books, articles and reviews which
have enjoyed wide circulation. He has appeared frequently on
radio and television, and has delivered numerous speeches. And he
has long been involved in civic affairs.
Despite the above, the court held, in effect, that Gertz was
not a public figure. In instructing the jury, the court
determined that the publication in question was libelous per se.
All issues were withdrawn from the jury except the proper measure
A closer examination of the article shows that its theme was
more general and far reaching than just the trial of one Chicago
policeman for murder. Instead, it painted the picture of a
conspiratorial war being waged by the Communists against the
police in general.*fn2 Caught up in the web of the alleged
conspiracy, aside from Gertz, was such a disparate cast of
characters as the Lake View Citizens Council, the Walker Report,
a Roman Catholic priest, and the Chicago Seed (an underground
newspaper). In fact, although Gertz's picture was displayed in
the body of the article, he did not play a very prominent role in
the article's exposé of the purported war on police.
At trial, Scott Stanley, Jr., the Managing Editor of American
Opinion, testified that he had commissioned Alan Stang, a
free-lance writer, to write the article. Stang had written for
defendant in the past, and Stanley had always found him accurate.
Stanley had never had cause to question the contents of any
article that Stang had written, and to his knowledge there had
not been any lawsuits arising out of Stang's articles. Relying on
what he observed to be Stang's past history of accuracy, Stanley
did not check the accuracy of "Frame-Up" personally.*fn3 While
it may be that the failure to check the accuracy of the article
was negligent, Stanley clearly did not act with actual malice or
with reckless disregard for the truth. See New York Times Co. v.
Sullivan, 376 U.S. at 287-288, 84 S.Ct. 710, 11 L.Ed.2d 686.
Plaintiff having failed to establish actual malice on the part
of defendant, the issue presented in this motion is whether the
court properly concluded that Gertz was not a public figure. If
the conclusion was proper, then the award of $50,000 by the jury
was not constitutionally impermissible. However, if the court
erred in holding that Gertz was not a public figure, then under
the rule in New York Times Co. v. Sullivan, supra at 279-280, 84
S.Ct. 710, 11 L.Ed.2d 686, and Curtis Publishing Co. v. Butts,
supra, 388 U.S. at 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094, the
article would be privileged under the First and Fourteenth
Amendments, and the award of damages therefor would have been
The issue is not as simple, of course, as the question of
whether Gertz is a public figure. The penumbra of material
protected by the guarantee of freedom of speech has been extended
to include matters of public interest, whether or not public
officials or public figures are involved.
"One need only pick up any newspaper or magazine to
comprehend the vast range of published matter which
exposes persons to public view, both private citizens
and public officials. Exposure of the self to others
in varying degrees is a concomitant of life in a
civilized community. The risk of this exposure is an
essential incident of life in a society which places
a primary value on freedom of speech and of press."
Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534,
542, 17 L.Ed.2d 456 (1967).
The rationale for affording First Amendment protection to
matters of public interest, as implied by Hill, supra, is that
our system of government places great value on society's open
discussion of not only public officials (Sullivan) and public
figures (Butts), but also matters of public interest (Hill). A
person allegedly defamed by matter pertaining to the public
interest must satisfy a heavy burden, i.e. a showing of actual
malice, in order to recover therefor. The rationale of Time, Inc.
v. Hill has been applied to several decisions of the Courts of
Appeal recently, all of which extend the guarantee of free speech
to matters of public interest.
For instance, a private individual's arrest for the sale of
allegedly obscene material has been held to be a matter of public
interest. Rosenbloom v. Metro-media, Inc., 415 F.2d 892, 894-896
(3d Cir. 1969), cert. granted, 397 U.S. 904, 90 S.Ct. 917, 25
L.Ed.2d 85 (1970). A picture of a lawyer eating lunch with
reputed gangsters has been found to be of public interest.
Wasserman v. Time, Inc., 424 F.2d 920, 922 (D.C.Cir. 1970), cert.
denied, 398 U.S. 940, 90 S.Ct. 1844, 26 L.Ed.2d 273 (1970); Time,
Inc. v. Ragano, 427 F.2d 219, 221 (5th Cir. 1970). To the same
effect are stories concerning the administration of public
health, United Medical Laboratories, Inc. v. Columbia
Broadcasting System, 404 F.2d 706, 711-712 (9th Cir. 1968), cert.
denied, 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969), and
the influence of a reputed gambler in the election of
the premier of the Bahamas, Time, Inc. v. McLaney, 406 F.2d 565,
573 (5th Cir. 1969), cert. denied, 395 U.S. 922, 89 S.Ct. 1776,
23 L.Ed.2d 239 (1969). Finally, it has been held that the
condition of a hotel serving guests at a national golf tournament
is a matter of public interest. Bon Air Hotel, Inc. v. Time,
Inc., 426 F.2d 858, 860-862 (5th Cir. 1970). See also, Farnsworth
v. Tribune Co., 43 Ill.2d 286, 290-292, 253 N.E.2d 408 (1969).
By analogy to the above cases, and to those cited in Bon Air
Hotel, Inc. v. Time, Inc., supra, 426 F.2d at 861, n. 4, I think
that the subject matter of "Frame-Up" was clearly one of public
interest protected by the First and Fourteenth Amendments. A
Chicago policeman's killing of a criminal suspect, and the
policeman's subsequent indictment for murder at a time when the
police generally were the subject of attacks within the
community, commanded wide public attention and interest. By
representing the victim's family in litigation brought against
the policeman, Gertz thrust himself into the vortex of this
important public controversy. Curtis Publishing Co. v. Butts,
supra, 388 U.S., at 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094. In
affording First Amendment protection to defendant's publication,
I reiterate that Gertz played a small part in the vast sweep of
the whole article. What this court concerns itself with primarily
is the public's right to become informed on a matter of public
interest, rather than with any right to know about persons who
have injected themselves into the limelight on that matter. See
United Medical Laboratories v. Columbia Broadcasting System,
supra, 404 F.2d at 712. The penumbra of First Amendment
protection falls equally on references to Gertz, the Lake View
Citizens Council, the policeman charged with murder, and the
Having already concluded that there was not sufficient evidence
presented at trial to support a finding of actual malice or
reckless disregard for the truth, judgment notwithstanding the
verdict should be entered for the defendant. New York Times Co.
v. Sullivan, 376 U.S. at 286-288, 84 S.Ct. 710, 11 L.Ed.2d 686;
F.R.Civ.P. § 50(b). The motion for a new trial is conditionally
denied, since no jury could reasonably find that defendant acted
with actual malice. F.R.Civ.P. § 50(c); cf. Neely v. Martin K.
Eby Construction Co., 386 U.S. 317, 322, 87 S.Ct. 1072, 18
L.Ed.2d 75 (1967), reh. denied, 386 U.S. 1027, 87 S.Ct. 1366, 18
L.Ed.2d 471 (1967).
Accordingly, the verdict for plaintiff is set aside and
defendant's motion for judgment notwithstanding the verdict is
granted. F.R.Civ.P. § 50(b).