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March 1, 1951


The opinion of the court was delivered by: HOLTZOFF

This is an action for defamation by means of a radio broadcast. After a trial on the merits, judgment was rendered for the defendant on the basis of a special verdict of the jury. The plaintiff now moves for a new trial. As two of the three grounds urged in support of the motion involve questions as to the admissibility of evidence, it is necessary to outline the issues and certain proceedings at the trial in order to determine the validity of these two grounds in their proper setting.

The plaintiff is a former Attorney General of the State of California. The defendant is a radio commentator. The latter broadcast a statement over the radio, originating in the District of Columbia, which was carried by radio stations in California and nine other western States. The statement charged the plaintiff with having committed a crime, to wit, accepting a bribe and, therefore, was defamatory per se. It was unnecessary to determine whether the circulation of defamatory material by radio is libel or slander, as the contents of the publication were such that it was both libelous per se and slanderous per se. *fn1"

 The defendant pleaded, first, truth; and second, qualified privilege. For the latter defense the defendant relied on the law of California to the effect that a defamatory statement concerning a public official or a candidate for public office, is privileged even if the statement is untrue, provided it was uttered in good faith and without malice. Snively v. Record Pub. Co., 185 Cal. 565, 571, 578, 198 P. 1. The same rule prevails in Arizona and Utah, which are two of the other States in which the broadcast was also circulated, Connor v. Timothy, 43 Ariz. 517, 523, 33 P.2d 293; Williams v. Standard-Examiner Pub. Co., 83 Utah 31, 27 P.2d 1. It will be observed that qualified privilege under the law of California is far broader than that generally prevailing at common law, for ordinarily privilege in respect to attacks on public officials and candidates for public office is limited to fair comment and criticism and does not extent to untrue statements of fact, Washington Times Co. v. Bonner, 66 App.D.C. 280, 286, 86 F.2d 836, 110 A.L.R. 393.

 At the beginning of the trial it was, therefore, necessary to solve the problem of conflict of laws, and determine what law regulated the substantive rights of the parties. The defendant contended that the law of California should apply in view of the fact that the plaintiff was a resident of California; that by far the greater part of the dissemination of the defamatory statement took place in California; and that the injury to the plaintiff, if any, occurred principally in that State. The plaintiff, on the other hand, urged that the law of each State to which the defamatory matter had been transmitted should govern as to so much of its distribution as took place within its borders.

 It is a general principle of the law of torts that the substantive law regulating the rights and liabilities of the parties, is the law of the place where the wrong was committed. Libel and slander take place where the defamatory statement is communicated and not in the place from which the offending material is sent or where it originates. Restatement on Conflict of Laws, Section 377, Note, paragraph 5. The question was complicated, however, by the fact that the broadcast was heard in a number of States. The Court was, therefore, called upon to determine whether the law of California alone was applicable, or whether the law of each of the States where the broadcast was received governed the rights of the parties to the extent to which the material was distributed in that jurisdiction. There appear to be only three cases in the Federal appellate courts in which this topic has been discussed. In only one of them was it actually decided.

 In Caldwell v. Crowell-Collier Publishing Co., 5 Cir., 161 F.2d 333, 335, the plaintiff was the Governor of Florida. The alleged libel was published not only in Florida, but in numerous other States. The court stated that the injury to the plaintiff must have occurred mainly in Florida, where he resided and held office, and that the law of Florida was principally to be regarded. It is to be noted that the court did not state that the law of Florida was to govern exclusively. The court added the following comment: 'We observe, however, no substantial difference between the law of Florida and that of other common law States.' Obviously, therefore, the point here presented was not actually decided in that case, and its discussion must be regarded as a a dictum.

 Another case on this point is Mattox v. News Syndicate Co., 2 Cir., 176 F.2d 897, 12 A.L.R.2d 988. There the publication took place in New York and Virginia. The plaintiff was a resident of Virginia. He was a private individual not known to the public and having no acquaintances or friends in New York. The trial court ruled that the law of Virginia was applicable. The Court of Appeals affirmed the judgment, holding that the plaintiff was not damaged in New York, since no one knew him there. Although there are some incidental remarks on the point, the Court does not definitely indicate what would have been the decision if the plaintiff had been a person of public standing, who was known in both New York and Virginia.

 The one case that actually passed upon the problem presented to this Court is Hartmann v. Time, Inc., 3 Cir., 166 F.2d 127, 1 A.L.R.2d 370. The court there held regarding a defamatory statement in a magazine that had a nationwide distribution that the law of each State in which the material had been circulated applied to the publication in that State.

 It seemed obvious that if in the case at bar the statement had been transmitted to only a single State, for example, Nevada, where the common law rule as to qualified privilege prevails, the law of that State would have governed. It appeared illogical and unreasonable to hold that because the material was disseminated in two or more States, say in Nevada and California, the Nevada rule should no longer apply to so much of the circulation as took place in that State and that the law of California, which is more favorable to the defendant, should regulate the rights and liabilities of the parties throughout.

 It was argued in behalf of the defendant that the law of the plaintiff's domicile should apply under the circumstances of this case. There is some support for this contention in a number of articles in legal periodicals, although hardly in judicial decisions. It seemed fallacious to evolve a doctrine that the law of the place where the defamatory statement was published should govern only if the circulation took place solely in a single State, but that the law of the plaintiff's domicile should rule if the publication occurred in two or more States. No logical distinction in principle was discernible between a publication in one State and a publication in several States in this respect.

 The court reached the conclusion, therefore, that the substantive law of each of the States in which the defamatory matter was circulated should govern the rights and liabilities of the parties in respect to so much of the circulation of the offending material as took place in that State. The corollary followed that the defendant was not entitled to the benefits of the broad California rule as to privilege, except as to the dissemination that took place in that State and the other States in which the same doctrine prevailed.

 It was argued by defense counsel that this conclusion would create a practical difficulty in submitting the issues to the jury and would unduly complicate the questions to be determined. Defense counsel relied on some pointed passing observations made by Judge Learned Hand in Mattox v. News Syndicate Co., supra, 176 F.2d at page 900, to the effect that 'It would certainly be an unworkable procedure to tell a jury that they should award damages, so far as they were suffered in State X, according to one measure, and, so far as they were suffered in State Y, according to another. * * *' Manifestly, there is a great deal of force in this objection. Yet it would be unfortunate if practical obstacles were to stand in the way of applying a correct rule of law. Trial judges are under a duty to develop devices that would minimize such difficulties. In any event this hurdle did not appear insurmountable in this instance. Although the defamatory statement was heard in ten States, actually there were only two rules of law as to privilege to be applied, each of the ten States falling in one or the other of these two categories.

 In order to clarify and segregate the issues for the jury and to simplify and lighten its burden, the court called for a special verdict and propounded separate questions as to whether truth of the publication was established, and as to whether the defense of qualified privilege as defined by the law of California, was sustained. The court also submitted separate inquiries to the jury as to the amount of damages suffered in States in which the California rule as to privilege did not prevail and the damages sustained throughout. In addition to these issues, the ...

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