Argued November 19, 1976
Decided December 28, 1976
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, SIDNEY A. FINE, J.
Donald S. Engel and Frank L. Miller for appellants.
Richard H. Sugarman and Barry S. Agdern for Hearst Corporation, respondent.
Harold L. Crossman for Mary Sanford, respondent.
MEMORANDUM. The order of the Appellate Division should be affirmed.
The publications complained of in this case fall short of defamation as a matter of law (cf. James v Gannett Co., 40 N.Y.2d 415, 419). It would serve no useful purpose in this otherwise trivial case to analyze and then to controvert the innuendos that appellants assert can be read into the gossipy tales which were retailed in the challenged magazine article. Moreover, in any defamation case it is perilous, and may be misleading, to generalize about rules unless their consideration is necessary to the disposition of the individual case. The hazard is both tempting and particularly to be eschewed when the applicable law, as in this field, is subject to fluctuating change, due in large measure to the struggles of modern courts in delineating the scope of First Amendment rights.
I cannot say that, as a matter of law, the published statements here were incapable of being read to imply that Gregg Dodge Moran had mishandled or mismanaged the funds she collected for charity and that the Morans' marital relationship was beset by strains owing to both partners' extracurricular activities. Even granting defendants' contention that the article in question made clear that the statements being reported were only "gossip", the tone, style, and arrangement of the "gossip" was such that the average reader might well be inclined to conclude that where there is smoke there is fire. I would, therefore, hold that it was for a jury to decide whether the average reader would in fact reach that conclusion.
However, I concur in the result reached by the majority only because the plaintiffs in the present context failed to meet the requirement of sufficient allegation that their reputations were actually harmed by the publication of gossip already published and unchallenged some three years prior to the publication of the article in issue here. While it is true that, until recently, a plaintiff who alleged libel per se was accorded a presumption that harm to reputation followed from the libel (see Mencher v Chesley, 297 N.Y. 94), since the United States Supreme Court's ruling in Gertz v Robert Welch, Inc. ( 418 U.S. 323), a private person who alleges libel, even libel per se, is held to a strict requirement of the actual damages to be proved (at pp 349-350).
As the Gertz case makes clear, while the States are to be accorded some leeway in defining the standard of responsibility to which libel defendants will be held, the tensions between private injury and First Amendment rights, in a close case, must still be resolved in favor of the freedoms of speech and of the press. Accordingly, a libel plaintiff who fails to establish any facts in support of an allegation of harm to reputation and who actually alleges facts inconsistent with such harm should, arguably, even on a motion to dismiss the complaint for failure to state a cause of action, be dismissed with prejudice.
Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE concur; Judge FUCHSBERG concurs in result in a separate opinion in which Chief Judge BREITEL concurs.
Order affirmed, without costs, in a memorandum.