Knoch, Senior Circuit Judge, and Kiley and Stevens, Circuit Judges. Kiley, Circuit Judge (concurring).
Plaintiff's appeal*fn1 from an order, 322 F. Supp. 997, entering judgment in favor of defendant notwithstanding the jury's $50,000 verdict presents two questions: (1) whether the First Amendment privilege as construed in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686, protects defendant's false and scurrilous comments about the plaintiff; and (2) if the privilege does apply, was the evidence insufficient to permit the jury to find that defendant's comments were made "with 'actual malice' -- that is, with knowledge that [they were] false or with reckless disregard of whether [they were] false or not." Id. at 279-280, 84 S. Ct. at 726.
Plaintiff is a reputable lawyer. Defendant published an article describing him as a "Communist-fronter," "Leninist," and participant in various "Marxist" and "Red" activities. The author of the article is not a party and did not testify. We assume, without deciding, that, as the district court held, the article was libelous per se as a matter of Illinois law and that its author was either deliberately or recklessly mendacious. Our concern is with the tension between the responsibility and the First Amendment freedom of the publisher.
The libel was published in the April 1969 edition of American Opinion. The magazine's managing editor, one Stanley, explained its editorial policy, method of operation, and how the libelous article was commissioned.
Early in the 1960s, in furtherance of the aims of the John Birch Society, American Opinion, and an affiliated publication also edited by Stanley, began to promulgate "information" about a "nation-wide conspiracy to harass and intimidate the police." American Opinion published many articles by a number of different authors on this subject. One of them was Alan Stang, the contributor of the libel in suit. Stang was never employed by defendant or any of its affiliates, but had been a regular contributor since 1963. He was recommended to Stanley as an "accurate researcher and analyst" with professional training and experience.*fn2 His services were engaged by Stanley for special assignments consistent with the aims of the John Birch Society. Between 1963 and 1969 he wrote about 35 articles for Stanley.
Although Stang's articles provoked many letters, some strongly adverse, according to Stanley none challenged the truth of any of Stang's factual averments. Prior to the article in suit, none was the subject of a demand for retraction or a libel suit.
In December, 1968, Stanley requested Stang to prepare an article on the murder trial of a Chicago police officer named Nuccio. Stang accepted, came to Chicago to make an investigation, consulted with Stanley over the long distance telephone a few times, and submitted his completed draft on February 18, 1969, in time for inclusion in the April edition which was scheduled for distribution in early March. Stanley made no effort to verify the accuracy of anything said in Stang's article. Based on statements in the text, Stanley drafted an introductory comment*fn3 and captions for illustrations.*fn4 Before the article was conceived, Stanley, whose office is in Boston, had never heard of the plaintiff.
The article is 18 pages long. It is concerned with the trial and conviction of officer Nuccio for the crime of murdering a 17-year old boy named Nelson. The article is intended to persuade the reader that Nuccio was the victim of a "frame-up," and that the frame-up was part of a national conspiracy to discredit local police forces; the purpose of that conspiracy is to lay the groundwork for the creation of a national police force, which, in turn, is a step toward a totalitarian state.
The article purports to analyze the evidence against Nuccio so incisively that the falsity of several witnesses' testimony at Nuccio's trial, and the error of the trial judge's finding of guilt, will be manifest to the reader.*fn5
Plaintiff is mentioned because he was retained by the Nelson family to assert a civil claim for damages against Nuccio. In that capacity, he attended the coroner's inquest into Nelson's death. Notwithstanding his limited, professional interest in the matter, the article implied that plaintiff was the architect of a gross miscarriage of justice. A purported relationship to a nationwide conspiracy was suggested, in part, by frequent references to the National Lawyers Guild, of which plaintiff had been a member and which Stang repeatedly described as a Communist front.
About 42,000 copies of the magazine were distributed nationally and about 86,000 reprints were printed, of which about 5,000 were sold or given away in Illinois. The article came to plaintiff's attention because a copy was handed to his partner's wife while she was shopping. He promptly filed this libel action in the federal court, alleging that various statements in the article were false and defamatory.
Ruling on various pretrial motions, the district court held as a matter of law that the publication was libelous per se, and that applicability of the New York Times standard depended on issues of ...