Hall v. Binghamton Press Co.

Hill, P. J. Each of these articles was published in February, 1941, immediately following the passage of the lease-lend bill by a narrow margin in the House of Representatives, and more than ten months before the United States took its place with the united nations in a declaration of war against the aggressor group. The open letter criticized plaintiff, Congressman from the Thirty-fourth New York District, for his vote against the lease-lend bill as being in opposition to the sentiment of the people of his district and as indicating that he was opposed to defense measures, and propounded this inquiry: “So it seems in order to ask you at this juncture whether you do feel that this country should be defended against un-Americanisms or whether you are going to take the line of least resistance and wind up with the Quislings.” [410] It also repeated the generally accepted belief that the dictators received comfort and assurance from dissension in America concerning preparation for defense and war. It recited the contest between Congress and the Administration, and expressed a belief that if America was to take a strong, united stand the aggressor nations would pause before inviting a declaration of war, and admonished plaintiff that he should not “ permit any word or act ” to indicate that the nation would not take all steps for defense, and continued: “ That, to our notion, Mr. Congressman, is the most grievous thing about your vote on the lease-lend bill. You have not represented the views of your people.” It also, with piquancy and mild vulgarity, discussed plaintiff’s youth, telling him that he is “ hardly dry behind the ears ” as Congressmen go, and that the writer thought “ the younger generation is softening and sometimes we think the softening is not necessarily in the muscles.” This is the only reference to plaintiff personally as distinguished from his votes in Congress and his political beliefs. Language of this kind is discussed in the opinion in Briarcliff L. Hotel v. C.-S. Publishers (260 N. Y. 106), at page 118: “ Mere exaggeration, slight irony or wit, or all those delightful touches of style which go to make an article readable, do not push beyond the limitations of fair comment. Facts do not cease to be facts because they are mixed with the fair and expectant comment of the story teller, who adds to the recital a little touch of his piquant pen.” The editorials discussed the ideology of Hitler, as expressed in “ Mein Kampf,” that “ divided counsels of democracy offer an open invitation to the totalitarian will,” asserted that Chamberlain’s appeasement policy “ was duck soup ” for the plans of the aggressors, and attributed the fate of France, Norway, Netherlands and Belgium and other nations to lack of solidarity and preparation. As to plaintiff’s attitude, it was asked whether he was the representative of the people of the district, or “of a small minority of weak-kneed, jelly-backed, slab-sided, half-baked, parasitical, long-haired mugwumps who are merely using this country for the purpose of making a living and have no intention of defending its ideals? ” It recommended that the plaintiff’s promises be put in writing, to assure that he would vote in accordance with the sentiment of the majority of his constituents. Nothing about this is libelous. It is not disgraceful or odious for a Congressman to vote against the wishes of the majority of his constituents if he honestly believes his position to be right. Edmund Burke is credited with saying in substance, in some one of his great speeches in Parliament that he owed his constituents more than servile [411] obedience to the sentiments of the majority, often reached without sufficient study and understanding. That in order- properly to represent them, he was required to examine the question on his and their behalf, and honestly and fearlessly vote as he believed right, irrespective of the will of the majority. These editorials were written when public sentiment was sharply divided, one group believing that the welfare, even the safety of our nation, required that “ all out aid ” be given Britain and her allies; the other advocating and urging the doctrine of isolationism. This divergence cut across party lines, with the discussion vigorous and bitter, the advocates on each side asserting that national safety and individual liberty depended upon the adoption of the theory which they advanced. During this controversy our First Citizen likened a national idol to Vallandingham, who was tried by a military commission in 1863 for disloyal utterances, found guilty and sentenced to confinement during the war, President Lincoln commuting the sentence to banishment beyond the Federal lines. In times like those through which we have recently passed, the doctrine of fair comment, should be extended as far as the authorities will permit. With unprecedented social and governmental conditions, our own institutions threatened, national legislators who participate in the formation of governmental policies should be held t.o the strictest official accountability. History has shown that this is promoted through free exercise of the right to criticize official acts. The people furnish the legislators with an extensive and expensive secretariat, give them the right to use the mails at public expense. Their colleagues are generous in granting leave to print. With these opportunities for personal praise and propaganda, opposition newspapers and editorial writers should not be limited to weak, tepid and supine criticism and discussion. In the portion of the complaint devoted to innuendo, it is stated that the editorial charges that plaintiff “ was motivated by greed rather than patriotism in such vote.” The meaning of the editorial is not enlarged by pleading innuendo. (Hays v. American Defense Society, 252 N. Y. 266, 270; Gardner v. Home Life Publications, Inc., 237 App. Div. 200.) Plaintiff complains concerning the statement in the third editorial that Hitler pointed out in his book “ that democracies may be thrown into confusion because of their very processes; that the people have to depend on selfish politicians, weak politicians, fearful politicians and greedy politicians to express their will; that in consequence the will is often not expressed (sic Mr. Hall’s vote).” Assuming that therefrom it may be implied that one of these adjectives was applied as descriptive of [412] the offending vote, and that plaintiff was charged with “ greed ” in connection therewith; there is greed other than that which advances personal fortune referred to in the complaint — greed for office, praise, popularity, fame or other baubles, which would not lay one open to contempt or disgrace, or be actionable. Those emotions, like vanity, are harmless vices. “ All the facts alleged in the complaint or which can by reasonable and fair intendment be implied from the allegations thereof, are deemed admitted.” (Triggs v. Sun Printing & Publishing Assn., 179 N. Y. 144, 153.) Language which tends to expose one to contempt and ridicule, or to induce an evil opinion in the minds of right-thinking persons and to deprive one of their confidence, friendly intercourse and society, is libelous per se. (Sydney v. Macfadden Newspaper Pub. Corp., 242 N. Y. 208; Kimmerle v. New York Evening Journal, Inc., 262 id. 99.) The plaintiff’s vote on these most vital questions was a matter about which a paper might make fair comment, either in its news items or editorially. “ A comment is fair when it is based on facts truly stated and free from imputations of corrupt or dishonorable motives on the part of the person whose conduct is criticised, and is an honest expression of the writer’s real opinion or belief.” (Briarcliff L. Hotel v. C.-S. Publishers, supra, 118.) It was not charged in the editorial that plaintiff was like Quisling. Inquiry was made whether plaintiff, by his votes in Congress indicated a belief that America should be defended or whether he was “ going to take the line of least resistance and wind up with the Quislings.” Criticism as to matters of public interest and concern is privileged so long as the criticism is fair with an honest purpose and not intemperate and malicious. The protecting privilege is not lost because the discussion brings embarrassment to the official. These editorials doubtless advanced plaintiff’s standing in the minds of those who believed in national isolation, and while he was condemned by those who believed in preparation for war and that defense was furthered by aid given Britain and her allies, this was caused by his vote in Congress against the lease-lend bill and not through reading the editorials. The order should be reversed on the law, with costs, and the motion granted, with costs. Bliss and Hefeernan, JJ., concur; Bliss, J., in a separate opinion, in which Hill, P. J., and Hefeernan, J., concur; Foster, J., dissents in an opinion, in which Schenck, J., concurs.