ELLIOT
M. GROSS, APPELLANT, v. THE
NEW YORK TIMES COMPANY, ET AL., RESPONDENTS.
https://www.law.cornell.edu/nyctap/I93_0205.htm
82
N.Y.2d 146, 623 N.E.2d 1163, 603 N.Y.S.2d 813 (1993).
October 21, 1993
1 No. 178 [1993 NY Int. 205]
Decided October 21, 1993
This
opinion is uncorrected and subject to revision before publication in the New
York Reports.
Howard M. Squadron, for
Appellant.
Floyd Abrams, for Respondents New York Times, et al.
Submitted by Philip Mandel, for Respondent Ehrenreich.
TITONE,
J.:
This dispute has its
origin in a series of investigative reports published by defendant New York
Times between January of 1985 and February of 1986. The articles in question
charged plaintiff, the former Chief Medical Examiner of the City of New York,
with having mishandled several high profile cases and having used his authority
to protect police officers and other city officials from suspicion after
individuals in their custody had died under questionable circumstances.
Defendants' articles spawned four separate criminal investigations into
plaintiff's conduct, each of which terminated with findings that there was no
evidence of professional misconduct or criminal wrongdoing by plaintiff.
Plaintiff thereafter commenced the present action for libel. The issue at this
early, pre-answer stage of the litigation is whether plaintiff's pleadings
sufficiently allege false, defamatory statements of fact rather than mere
nonactionable statements of opinion. We hold that plaintiff's complaint, which
encompasses actionable assertions of fact as well as nonactionable opinions and
conclusions, is sufficient to withstand a motion to dismiss under CPLR
3211(a)(7).
I.
Plaintiff's fifty-nine
page complaint cites essentially eight "false and defamatory"
articles as the basis for his libel action. The first article in the series,
which was published on January 27, 1985 under defendant Philip Shenon's byline,
was entitled "Chief Medical Examiner's Report in Police Custody Cases
Disputed" and had, as a sub-headline, "Cover-Ups Charged in Autopsies
and Some Deaths - Gross Denies 'Misleading" in Any Instance." The
opening two paragraphs asserted that, as the City's Chief Medical Examiner,
plaintiff had "produced a series of misleading or inaccurate autopsy
reports on people who died in custody of the police, according to colleagues in
the Medical Examiner's office and pathologists elsewhere." Further,
according to the article, plaintiff had "instituted a policy of special
handling for police-custody cases," had "performed the autopsies
himself" in many such cases and "[i]n others, documents show[,] he
intervened to alter the findings of other pathologists." What follows is a
series of assertions about plaintiff's actions in connection with several
specific cases, including that of "a Brooklyn man who neighbors say was beaten
by police officers" and that of Eleanor Bumpurs, "the 66-year old
woman who was shot to death * * * by police officers trying to evict her."[n
1]
The article, which also discussed the purported disarray in the
Medical Examiner's office, reported on interviews conducted with several
pathologists, who both described and characterized plaintiff's specific actions
in relation to cases handled by the Medical Examiner's office. One pathologist
who had worked with plaintiff asserted for example, that, in the case of the
man who had allegedly been beaten by the police, plaintiff had changed the
autopsy findings to state that death had resulted from a procedure performed by
doctors after the incident rather than from a fractured skull. The pathologist
was then quoted as asserting: "What Gross has done is bend over backwards
to help the police" and "[i]t's weaseling." Another pathologist,
who had not worked with plaintiff but who had been asked to review some of the
disputed autopsy findings, was quoted as saying: "If he has done these
cases honestly, Dr. Gross is unbelievably incompetent"; "[i]f he has
done them deliberately -- and I believe he has -- he may well be looking for a
way out for the police." The tenor of the other articles cited in
plaintiff's complaint was similar, with quotes from documents and individuals
describing plaintiff's specific actions, disagreeing with his medical
conclusions and drawing conclusions about his motives. The overall thrust of
the series was that plaintiff had issued false or misleading reports about
deaths occurring within his jurisdiction in order to protect the police and
that his conduct ranged from "highly suspicious" (article published
February 5, 1985) to "possibly illegal" (article published January
28, 1985).
Before discovery had begun, defendants moved to dismiss the
libel claims in plaintiff's complaint, arguing that the articles on which it
was based conveyed only the opinion of its staff and their interviewees and
were therefore not actionable.[n 2]The
trial court agreed with defendants' position and on June 10, 1991 granted the
requested relief.
The Appellate Division
affirmed the trial court's determination, stressing that the "articles
complained of report accusatory opinions together with a recitation of the
facts upon which they are based" and that "[e]specially when
attributed to a source, the average reader will recognize that criticisms,
allegations and accusations are not statements of fact but rather expressions
of opinion" (180 AD2d 308, 316). The court also rejected plaintiff's
contention that the articles could not be characterized as protected opinion to
the extent that they suggested he was guilty of criminal wrongdoing. In the
court's view, the allegations that plaintiff had "lied" in his
professional conclusions regarding the causes of death in controversial cases
and had "covered up" for misconduct by City police officers were too
"[v]ague" to "amount to accusations of criminal misconduct"
(id., p 317). This Court subsequently granted plaintiff leave to appeal from
the Appellate Division's order. We now reverse and hold that the complaint
should have been sustained, since, in addition to the expressed opinions and
conclusions, the articles contain defamatory assertions that a reasonable
reader would understand to be advanced as statements of fact.
II.
At the core of the
dispute in this case is the much discussed distinction between expressions of
opinion, which are not actionable, and assertions of fact, which may form the
basis of a viable libel claim. The distinction has been the subject of
considerable analysis and legal evolution in recent years (see, e.g., Milkovich v Lorain Journal Co., 497 US 1; Immuno AG. v Moor-Jankowski, 77 NY2d 235, cert
denied __ US __, 111 S Ct 2261; Steinhilber
v Alphonse, 68 NY2d 283). Indeed, we revisited the question ourselves just
one year ago (600 West 115th St. Corp. v Von
Gutfeld, 80
NY2d 130). Nonetheless, as the opinions below and the parties'
submissions illustrate, there remain many unanswered questions and areas of
uncertainty in this developing field of libel law.
The underlying principles
are not in dispute. The Supreme Court's decision in New York Times Co. v Sullivan (376 US
254) injected a constitutional dimension into what had previously been regarded
as a matter of state common law. In that case and others (e.g., Philadelphia Newspapers, Inc. v Hepps, 475
US 767; Curtis
Publishing Co. v Butts, 388 US 130; see also,Gertz v Robert
Welch, Inc, 418 US 323), the Court delineated the increased burden of proof
that libel plaintiffs in the public arena must bear in order to assure the
"'unfettered interchange of ideas'" that is so necessary to the
continued vitality of a government "'responsive to the will of the
people'" (New York Times Co. v Sullivan, supra, p 269, quoting Roth v United States, 354 US 476, 484, and Stromberg v California, 283 US 359, 369).
Additionally, in Greenbelt
Cooperative Publishing Assn. v Bresler (398 US
6, 12), the Court recognized that there are constitutional restrictions on the
"permissible scope" of defamation actions and, specifically, that
evident "rhetorical hyperbole" is simply not actionable (see,Milkovich
v Lorain Journal Co,, supra, p 16; see also, Hustler
Magazine, Inc. v Falwell, 485 US 46, 50; Letter
Carriers v Austin, 418 US 264, 284-286).
The focus in this appeal,
which involves a pre-answer dispute over the sufficiency of the complaint, is
whether the articles published by defendants fall into a category that is
actionable and, more specifically, whether the articles constitute the type of
opinion statements that cannot, under the case law, form the basis of a
defamation claim. While the Supreme Court has rejected the notion that there is
a special categorical privilege for expressions of opinion as opposed to
assertions of fact, it has recognized that "a statement of opinion
relating to matters of public concern which does not contain a provably false
factual connotation will receive full constitutional protection" (Milkovich
v Lorain Journal Co., supra, pp 17-21). Further, this Court has adopted a
similar view under our own State Constitution and has embraced a test for
determining what constitutes a nonactionable statement of opinion that is more
flexible and is decidedly more protective of "the cherished constitutional
guarantee of free speech" (Immuno AG. v Moor-Jankowski, supra, p
256; see, 600
West 115 St. Corp. v Gutfeld, supra, p 145).
The dispositive inquiry,
under either federal or New York law, is "whether a reasonable [reader]
could have concluded that [the articles] were conveying facts about the
plaintiff" (600 West 115th St. Corp. v Gutfeld, supra, p 139).
Since falsity is a necessary element of a defamation cause of action and only
"facts" are capable of being proven false, "it follows that only
statements alleging facts can properly be the subject of a defamation action"
(id.; accord, Immuno
AG. v Moor-Jankowski, supra, p 254). In our State the inquiry, which must be made by
the court (see, 600
West 115th St. v Von Gutfeld, supra, p 139; Steinhilber v Alphonse, supra, p 290), entails
an examination of the challenged statements with a view toward (1) whether the
specific language in issue has a precise meaning which is readily understood;
(2) whether the statements are capable of being proven true or false; and (3)
whether either the full context of the communication in which the statement appears
or the broader social context and surrounding circumstances are such as to
"'signal * * * readers or listeners that what is being read or heard is
likely to be opinion, not fact'" (Steinhilber v Alphonse, supra, p
292; quoting Ollman
v Evans, 750 F2d 970, 983, cert denied 471 US 1127; accord, Immuno AG. v Moor-Jankowski, supra).
This is not to suggest
that the wisdom to be derived from the formerly utilized common-law analysis
has been completely discarded. To the contrary, although the terminology may
have fallen out of favor, the seasoned common-law categories for actionable and
nonactionable reportage have been invoked to inform our modern constitutional
analysis (Immuno AG. v Moor-Jankowski, supra, p 250; see, e.g., James v Gannett Co., 40 NY2d 415; Julian v American Business Consultants, 2
NY2d 1; see also, Steinhilber
v Alphonse, supra, p 293).
Thus, in determining
whether a particular communication is actionable, we continue to recognize and
utilize the important distinction between a statement of opinion that implies a
basis in facts which are not disclosed to the reader or listener (see, Hotchner v Castillo-Puche, 551 F2d 910, 913, cert
denied sub nom. Hotchner
v Doubleday & Co., 434 US 834; Restatement [Second] of Torts § 566), and a
statement of opinion that is accompanied by a recitation of the facts on which
it is based or one that does not imply the existence of undisclosed underlying
facts (see, Ollman
v Evans, supra, p 976;Buckley v Littell, 539 F2d 882, 893, cert
denied 429 US 1062; Restatement [Second] of Torts § 556 comment c). The former
are actionable not because they convey "false opinions" but rather
because a reasonable listener or reader would infer that "the speaker [or
writer] knows certain facts, unknown to [the] audience, which support [the]
opinion and are detrimental to the person [toward] whom [the communication is
directed]" (Steinhilber v Alphonse, supra, p 290). In contrast, the
latter are not actionable because, as was noted by the dissenting opinion in Milkovich v Lorain Journal Co.(supra, pp 26-27, p 28 n3
[Brennan, J.]), a proffered hypothesis that is offered after a full recitation
of the facts on which it is based is readily understood by the audience as
conjecture (see, e.g., Potomac
Valve & Fitting, Inc. v. Crawford Fitting Co., 829
F2d 1280, 1290). Indeed, this class of statements provides a clear illustration
of situations in which the full context of the communication "'signal[s] *
* * readers or listeners that what is being read or heard is likely to be
opinion, not fact'" (Steinhilber v Alphonse, supra, p 292; quoting Ollman v Evans, supra, p 983).
III.
Applying these principles
to plaintiff's cause is not a simple task because plaintiff's pleadings cite
the whole series of articles, each in its entirety, as the basis for
plaintiff's defamation claim. Obviously, not every word and assertion in the
disputed articles is false or defamatory. Some of the actions and words
attributed to plaintiff undoubtedly did take place. Furthermore, many of the
objective assertions made in this series of many thousand words are
uncontroversial and are therefore not the proper subject for a defamation
action.
We conclude, however,
that the courts below erred in dismissing the complaint, since the articles it
cited contain many assertions of objective fact that, if proven false, could
form the predicate for a maintainable libel action. Additionally, although the
articles contain many assertions that would be understood by the reasonable
reader as mere hypotheses premised on stated facts, there are also actionable
charges made in the articles -- such as the charges that plaintiff engaged in
cover-ups, directed the creation of "misleading" autopsy reports and
was guilty of "possibly illegal" conduct -- that, although couched in
the language of hypothesis or conclusion, actually would be understood by the
reasonable reader as assertions of fact (see, Rinaldi
v Holt, Rinehart & Winston, Inc., 42 NY2d 369, 382).
Contrary to the Appellate
Division's conclusion, these assertions are not too vague to constitute
concrete accusations of criminality. Nonetheless, we hold them to be actionable
not, as plaintiff would have it, because they involve accusations of
criminality per se, but rather because in this context they convey
"facts" that are capable of being proven true or false. Although
plaintiff repeatedly suggests otherwise, there is simply no special rule of law
making criminal slurs actionable regardless of whether they are asserted as
opinion or fact.
In Silsdorf v Levine (59
NY2d 8, 16, cert denied 464 US 831), we merely held that an accusation of
criminality that, read in context, is set forth as a fact is not transformed
into a nonactionable expression of opinion merely because it is couched
"in the form of an opinion." To illustrate, if the statement
"John is a thief" is actionable when considered in its applicable
context, the statement "I believe John is a thief" would be equally
actionable when placed in precisely the same context. By the same token,
however, the assertion that "John is a thief" could well be treated
as an expression of opinion or rhetorical hyperbole where it is accompanied by
other statements, such as "John stole my heart," that, taken in
context, convey to the reasonable reader that something other than an objective
fact is being asserted. Indeed, it has already been held that assertions that a
person is guilty of "blackmail," "fraud,"
"bribery" and "corruption" could, in certain contexts, be
understood as mere, nonactionable "rhetorical hyperbole" or
"vigorous epithets" (see, e.g., Greenbelt
Pub. Assn. v Bresler, supra, p 14; 600 W.
115th Street Corp. v Gutfeld, supra, pp 143-145).
Similarly, even when
uttered or published in a more serious tone, accusations of criminality could
be regarded as mere hypothesis and therefore not actionable if the facts on
which they are based are fully and accurately set forth and it is clear to the
reasonable reader or listener that the accusation is merely a personal surmise
built upon those facts. In all cases, whether the challenged remark concerns
criminality or some other defamatory category, the courts are obliged to consider
the communication as a whole, as well as its immediate and broader social
contexts, to determine whether the reasonable listener or reader is likely to
understand the remark as an assertion of provable fact (600 W. 115th Street
Corp. v Von Gutfeld; see, Immuno AG. v Moor-Jankowski, 77 NY2d 235,
supra).
In this case, the
assertion that plaintiff engaged in "corrupt" conduct in his capacity
as Chief Medical Examiner cannot be treated as a mere rhetorical flourish or
the speculative accusation of an angry but ill-informed citizen made during the
course of a heated debate (see, 600
West 115th Street Corp. v Von Gutfeld, supra). Rather, the
accusation was made in the course of a lengthy, copiously documented newspaper
series that was written only after what purported to be a thorough
investigation. Having been offered as a special feature series rather than as
coverage of a current news story, the disputed articles were calculated to give
the impression they were "the product of some deliberation, not of the
heat of the moment" (id., p 142). Moreover, since the articles appeared in
the news section rather than the editorial or "op ed" sections, the
common expectations that apply to those more opinionated journalistic endeavors
were inapplicable here (see,Immuno AG. v Moor-Jankowski, supra). Thus,
the circumstances under which these accusations were published
"encourag[ed] the reasonable reader to be less skeptical and more willing
to conclude that the[y] stat[ed] or impl[ied] facts" (600 W. 115th
Street Corp. v Von Gutfeld, supra, p 142).
In closing, we stress once
again our commitment to avoiding the "hypertechnical parsing" of
written and spoken words for the purpose of identifying "possible
'facts'" that might form the basis of a sustainable libel action (Immuno
AG. v Moor-Jankowski, supra, p 256). The core goal of "exercises"
such as this is to protect the individual's historic right to vindicate
reputation without impairing our "cherished constitutional guarantee of
free speech" (id.) or casting a pall over citizens' ability to engage in robust
debate through the print and broadcast media. In this case, the reputation of a
public official with significant professional credentials was allegedly
impaired by a series of widely read newspaper articles that portrayed him as
unethical and corrupt. Under the circumstances of his case, we conclude that
this individual should be permitted to go forward in an effort to establish a
right to a libel recovery. The defendants' expressional rights as well as the
cherished values embodied in the First Amendment guarantees can be adequately
protected in this context by the well-established rule requiring that plaintiff
prove not only that the statements he cites are false and defamatory but also
that they were made with actual malice. As this Court has previously observed,
compliance with the latter requirements is a matter that is well suited to
testing, at least in the first instance, on a motion for summary judgment
brought pursuant to CPLR 3212 (see, Immuno
AG. v Moor-Jankowski, supra, p 256; Karaduman
v Newsday, Inc., supra, p 545).
Accordingly, the order of
the Appellate Division, insofar as appealed from, should be reversed, with
costs, and the motion of the Times defendants to dismiss causes of action one
through five and eight through thirteen of the complaint denied.
F O O T N O T E S
1. For a
review of the factual background of the Bumpurs case, see People
v Sullivan, 68 NY2d 495.[return
to text]
2. The
dismissal motion at issue in this appeal is the one made by The New York Times,
Philip Shenon, Sam Roberts, A.M. Rosenthal and Peter Milones, all of whom are
affiliated with defendant newspaper. An earlier dismissal motion by the other
named defendants was granted by the trial court. The trial court also dismissed
plaintiff's sixth, seventh, fourteenth and fifteenth causes of action against
the New York Times defendants. Those dismissals are not being challenged on
this appeal.[return
to text]
* * * * * * * * * * * * *
* * * *
Order, insofar as
appealed from, reversed, with costs, and motion of the "Times
defendants" to dismiss causes of action 1 through 5 and 8 through 13 of
the complaint denied. Opinion by Judge Titone. Chief Judge Kaye and Judges
Simons, Hancock and Bellacosa concur. Judges Smith and Levine took no part.
