United States District Court, Northern District of Illinois, E. D
February 20, 1973
ALPINE CONSTRUCTION COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF,
OVID DEMARIS AND LYLE STUART, INC., A CORPORATION, DEFENDANTS. ALPINE CONSTRUCTION COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF, V. OVID DEMARIS ET AL., DEFENDANTS.
The opinion of the court was delivered by: McGARR, District Judge.
MEMORANDUM OPINION AND ORDER
This is an action for libel arising out of the publication
of the book "Captive City". Defendant Demaris is the author of
the book, while defendants Lyle Stuart and Simon & Schuster
are the publishers of the hardbound and paperback editions,
respectively, of the book. Jurisdiction is based upon
diversity of citizenship.
The alleged libel appears in an appendix entitled "The
Antisocial Register". The statement in issue is part of a
biographical sketch of one Dominick Brancata, whose business
is listed as Alpine Construction Company, the plaintiff.
Brancata is stated to be a gangster whose livelihood consists
of collecting tribute from Chicago gambling, prostitution, and
vice operations. The abovementioned statement relating
Brancata to Alpine Construction is the sole reference to
plaintiff in the book.
The complaint asserts the statement to be false and to have
been published maliciously with the knowledge that it was
false, or with a reckless disregard for the truth or a
conscious indifference to the rights of the plaintiff, or in
the exercise of ordinary diligence, the defendants could have
ascertained that it was false.
Defendants have moved for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. Supporting
memoranda and affidavits have been filed by both sides.
The initial issue is the applicable legal standards. As this
is a diversity action, the libel law of the forum state is
controlling as to non-constitutional issues. Erie Railroad Co.
v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
There are, however, substantial constitutional issues in this
case which have recently been examined by the United States
Supreme Court. In a series of cases beginning with New York
Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d
686 (1964), the Supreme Court has considered the limitations
upon state libel laws imposed by the constitutional guarantees
of freedom of speech and of the press. New York Times held that
in a civil libel action by a public figure against a newspaper,
those guarantees required clear and convincing proof that a
defamatory falsehood alleged as libel was uttered with
"knowledge that it was false or with reckless disregard of
whether it was false or not." New York Times at 280, 84 S.Ct.
at 726. This rule has been extended to "public figures". Curtis
Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18
L.Ed.2d 1094 (1967). In the case of Rosenbloom v. Metromedia,
403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), this
constitutional protection was further extended "to all
discussion and communication involving matters of public or
general concern, without regard to whether the persons involved
are famous or anonymous". Rosenbloom at 44, 91 S.Ct. at 1820.
The book in question, "Captive City", deals with the alleged
crime syndicate control of the City of Chicago. More
specifically, the alleged libel deals with syndicate
involvement in legitimate business. This certainly is an area
of "public or general concern". Accordingly, we hold that the
New York Times standard through Rosenbloom is applicable to
Muckraking is usually confined to areas of "public or
general concern", since these areas are where reader interest
and profit are found. And it may be that almost total freedom
of comment without regard for truth is the price we must pay
for untrammelled exchange on issues of general concern. It
seems strange that to falsely accuse a man of homosexuality or
stealing from his employer invokes stricter standards of
accountability than to name him an associate of the crime
syndicate. Such however is the clear holding of
Rosenbloom, which decision it is the duty of this Court to
accept and follow.
The issue, then, is whether plaintiff can demonstrate by
clear and convincing evidence that defendants published the
alleged libel with knowledge that it was false or with
reckless disregard of whether it was false or not. In support
of their motion for summary judgment, defendants have
submitted the affidavit of Ovid Demaris, the author of the
alleged libel. Demaris states that while doing research for
this book during 1964, he became aware of one William
Goldstein (also known as "Bill Gold"), who was a reputed
syndicate gambling overseer on the North Side of the City of
Chicago. Further research revealed that William Goldstein was
a one-third owner of Alpine Construction Company since its
formation, although it subsequently appears that his interest
in the firm was purchased in the mid-1960's by Louis Auslander
who, with his wife, is the present owner of Alpine. Demaris
states that the basis for the Alpine reference in the book was
an article in the April 20, 1964 edition of the Chicago Daily
News relating to "hoodlum penetration into the city's business
life". Particularly, the Daily News article stated:
William Gold, syndicate gambling overseer,
figured prominently in the 1952 `Big Nine' crime
hearings in Chicago's City Council.
"Today he runs the Alpine Construction Co.,
1233 S. Wabash, for the notorious Dominick
Demaris affidavit, p. 6
Demaris goes on to state that he was unaware of a retraction
of the above-quoted story in the July 20, 1964 edition of the
Chicago Daily News, and further states:
"Rather, my research (later confirmed by Mr.
Auslander's deposition testimony) indicated
strongly that Bill Gold was affiliated with
Alpine Construction Company; and, given the
widely reputed involvement of both Gold and
Brancata in North Side gambling, it seemed
probable to me that Mr. Brancata would have at
least affected Gold's participation in Alpine."
Demaris affidavit, p. 7
From this affidavit, it appears clear that Demaris did not
know the statement was false and plaintiff has submitted no
evidence to contradict this conclusion. Therefore, the sole
remaining issue was whether defendants' publication was with
reckless disregard for the truth or falsity of the statement.
The definition of "reckless disregard" has recently been
succinctly set forth by the Supreme Court:
"[R]eckless conduct is not measured by whether
a reasonably prudent man would have published, or
would have investigated before publishing. There
must be sufficient evidence to permit the
conclusion that the defendant in fact entertained
serious doubts as to the truth of his
publication. Publishing with such doubts shows
reckless disregard for truth or falsity and
demonstrates actual malice."
St. Amant v. Thompson, 390 U.S. 727, 731, 88
S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). See
also, Waskow v. Associated Press, 149
U.S.App.D.C. 278, 462 F.2d 1173, 1176 (1972).
Using the above standard, it is apparent that while more
thoroughness might be desirable and would have caught the
subsequent retraction, failure to do so does not result in
"reckless conduct" unless the defendant "entertained serious
doubts as to the truth of his publication". St. Amant, 390 U.S.
at 731, 88 S.Ct. at 1325. Defendant Demaris submits by
affidavit that he entertained no such doubts, and no showing
has been made to contradict this.
Therefore, it is the conclusion of this Court that
defendants' actions do not constitute actual malice as
required by New York Times v. Sullivan. Accordingly,
defendants' motion for summary judgment is granted.
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