
    Warren E. Spahn, Respondent, v. Julian Messner, Inc. et al., Appellants.
    Reargued October 23, 1967;
    decided December 28, 1967.
    
      
      Selig J. Levitan, Joel T. Camche and Ellis B. Levine for appellants.
    I. The complaint herein, not alleging that any falsification by defendants was knowing or reckless, is legally insufficient. (New York Times Co. v. Sullivan, 376 U. S. 254; Time, Inc. v. Hill, 385 U. S. 374.) II. There was no finding or evidence below of knowing or reckless falsification on the part of either defendant. (Curtis Pub. Co. v. Butts, 388 U. S. 130.) III. For this court to validate the award of damages based upon charges not made or proved would be a denial of due process of law. (Thompson v. Louisville, 362 U. S. 199; De Jonge v. Oregon, 299 U. S. 353.) IV. The judgment below must be vacated and, since plaintiff has already stipulated the absence of malice, the case should be dismissed with prejudice. (Goodman v. Del-Sa-Co Foods, 15 N Y 2d 191; Didier v. Macfadden Pubs., 299 N. Y. 49; Linn v. Plant Guard Workers, 383 U. S. 53; Dombrowski v. Pfister, 380 U. S. 479.)
    
      Earle Warren Zaidins for respondent.
    I. In the light of Time, Inc. v. Hill (385 U. S. 374), the judgment should be reinstated thus affirming the courts below that defendants’ book was an intentional material and substantial falsification of plaintiff’s life story. II. The complaint herein is legally sufficient especially since motion to conform to the evidence was made upon the trial’s conclusion. (Diemer v. Diemer, 8 N Y 2d 206.)
    
      Irwin Karp for Authors League of America, Inc., amicus curiae.
    
    I. In light of Time, Inc. v. Hill, the complaint should be dismissed on the merits. (Time, Inc. v. Hill, 385 U. S. 374; New York Times Co. v. Sullivan, 376 U. S. 254.) II. The false statements in appellants ’ book were not “ material and substantial falsifications ”. III. The false or inaccurate statements in appellants ’ book were not made knowingly or “ in reckless disregard of the truth ’’. IV. The complaint should be dismissed since sections 50 and 51 — as interpreted when the book was written, published and tried—were unconstitutional. (Smith v. California, 361 U. S. 147; People v. Bookcase, Inc., 14 N Y 2d 409; People v. Kahan, 15 N Y 2d 311; Talley v. California, 362 U. S. 60; N.A.A.C.P. v. Button, 371 U. S. 415). V. If the complaint is not dismissed on the merits, defendants are entitled to a new trial and plaintiff should be required to replead. VI. The complaint is insufficient under Time, Inc. v. Hill. (Rosemont Enterprises v. Random House, 366 F. 2d 303.)
   Keating, J.

Again before us is this appeal by the defendant — author, Milton Shapiro, and his publisher, the defendant Julian Messner, Inc., from an order of the Appellate Division (First Department) unanimously affirming a judgment of the Supreme Court (Markowitz, J.) enjoining the publication and dissemination of the book “ The Warren Spahn Story” and awarding the plaintiff $10,000 in damages.

On July 7, 1967, in conformance with the mandate of the Supreme Court of the United States, we vacated our prior order of affirmance (18 N Y 2d 324) and ordered that the case be set down for reargument in light of Time, Inc. v. Hill (385 U. S. 374).

Upon reconsideration of the appeal, we adhere to our original determination and again affirm the order appealed from.

Little purpose would be served here by repeating the discussion of sections 50 and 51 of the Civil Eights Law found in our original opinion or the extensive discussion of the area found in the Supreme Court opinion of Time, Inc. v. Hill (supra). The difficulty which the Supreme Court found with our construction of sections 50 and 51 was the intimation in our original opinion in this case that the standards outlined by the court in New York Times Co. v. Sullivan (376 U. S. 254) were applicable only to actions brought under the statute by public officials with regard to publications about their official conduct. Since this ease involved neither a public official nor a publication relating to official conduct we did not consider the merits of the appellants’ arguments under New York Times Co. v. Sullivan (supra).

The remand of this appeal by the Supreme Court gives us an opportunity to construe the statute so as to preserve its constitutionality (People v. Epton, 19 N Y 2d 496, cert. den. 390 U. S. 29) and to review the appeal in light of the standards set forth in New York Times Co. v. Sullivan (supra) and Time, Inc. v. Hill (supra).

We hold in conformity with our policy of construing sections 50 and 51 so as to fully protect free speech, that, before recovery by a public figure may be had for an unauthorized presentation of his life, it must be shown, in addition to the other requirements of the statute, that the presentation is infected with material and substantial falsification and that the work was published with knowledge of such falsification or with a reckless disregard for the truth?)

An examination of the undisputed findings of fact below as well as the defendants’ own admission that “ [i]n writing this biography, the author used the literary techniques of invented dialogue, imaginary incidents, and attributed thoughts and feelings ” (brief for appellants, p. 10) clearly indicates that the test of New York Times Co. v. Sullivan (supra) and Time, Inc. v. Hill {supra) has been met here.

The Trial Judge found gross errors of fact and “ all-pervasive distortions, inaccuracies, invented dialogue, and the narration of happenings out of context ” (43 Misc 2d 219, 230). These findings were unanimously affirmed by the Appellate Division The court wrote: “ [I] t is conceded that use was made of imaginary incidents, manufactured dialogue and a manipulated chronology. In short, defendants made no effort and had no intention to follow the facts concerning plaintiff’s life, except in broad outline and to the extent that the facts readily supplied a dramatic portrayal attractive to the juvenile reader. This liberty * * * was exercised with respect to plaintiff’s childhood, his relationship with his father, the courtship of his wife, important events during their marriage, and his military experience. ” (23 A D 2d 216, 219.)

Exactly how it may be argued that the “ all-pervasive ” use of imaginary incidents—incidents which the author knew did not take place — invented dialogue — dialogue which the author knew had never occurred—and attributed thoughts and feelings — thoughts and feelings which were likewise the figment of the author’s imagination—can he said not to constitute knowing falsity is not made clear by the defendants. Indeed, the arguments made here are, in essence, not a denial of knowing falsity but a justification for it.

Thus the defendants argue that the literary techniques used in the instant biography are customary for children’s books. To quote from their brief (p. 11): The use of manufactured dialogue was characterized as mandatory ’ by a noted critic, teacher and author of children’s books. She explained that the dialogue is ‘ created, and based on probable facts and possible dialogue, which the biographer, through his association with his subject, through the vast amount of research that is necessary, can assume might have happened. It’s not a falsification in that sense of the word at all ’. Basically a juvenile biography has to be a lively story to catch a youngster away from television and all other distractions. * * * You cannot make it straight narrative. It can’t list a great many facts or details which you can find in an encyclopedia or Who’s Who ”.’ ”

Even if we were to accept this explanation as a defense to this kind of action (cf. note, 67 Col. L. Rev. 926, 942), the defendants could not succeed here. The author of ‘ ‘ The Warren Spahn Story ’ ’ had virtually no association with the subject. He admitted that he never interviewed Mr. Spahn, any member of his family, or any baseball player who knew Spahn. Moreover, the author did not even attempt to obtain information from the Milwaukee Braves, the team for which Mr. Spahn toiled for almost two decades. The extent of Mr. Shapiro’s “ vast amount of research ” in the case at bar amounted, primarily, to nothing more than newspaper and magazine clippings, the authenticity of which the author rarely, if ever, attempted to check out.

To hold that this research effort entitles the defendants to publish the kind of knowing fictionalization presented here would amount to granting a literary license which is not only unnecessary to the protection of free speech but destructive of an individual’s right—albeit a limited one in the case of a public figure — to be free of the commercial exploitation of his name and personality.

That the defendants realize the weakness of their position is evidenced by the stress which they place upon what must be regarded as a purely technical defect—the failure of the plaintiff to allege in his complaint knowing falsity or reckless disregard for the truth. In addition to the fact that a motion was made to conform the pleading to the proof, the defendants do not allege any prejudice as a result of the defective pleading. Indeed, the defendants relied on New York Times Co. v. Sullivan in the trial court and do not allege that they were denied an opportunity to tailor their proof to that defense. Under these circumstances the defective pleading does not warrant reversal (Himoff Ind. Corp. v. Srybnik, 19 N Y 2d 273, 279; Diemer v. Diemer, 8 N Y 2d 206; see, also, Van Gaasbeck v. Webatuck Cent. School Dist., 21 N Y 2d 239, decided herewith).

For the reasons stated the order appealed from should be affirmed, with costs.

Bergan, J. (dissenting).

Had the Supreme Court agreed with our decision at 18 N Y 2d 324 upholding the constitutional validity of sections 50 and 51 of the Civil Rights Law as applied to Spahn’s case, it would normally have affirmed in due course. Instead, it remanded the case back here for further consideration in view of Time, Inc. v. Hill (385 U. S. 374).

This seems to imply that on the present record the court disagrees with our earlier determination to sustain the statute against the argument of defendants that, as invoked by Spahn, it invades the constitutionally protected freedom of the press.

Of course, the converse is also true, that the court could have reversed on the present record if it could see that the case could not be re-examined according to different criteria. But it could not necessarily see that and would then leave it open to the State court to re-examine.

Therefore, one alternative open to us is to remit the case to the trial court to examine and decide the right of plaintiff to recover on showing “calculated falsehood” against which “the constitutional guarantees can tolerate sanctions ” (Hill, p. 389); or a “‘reckless disregard of the truth’” (id., p. 390) which is treated similarly. (See, further, New York Times Co. v. Sullivan, 376 U. S. 254; Garrison v. Louisiana, 379 U. S. 64.)

These specific criteria were neither pleaded nor established on this record which essentially rests on an asserted violation of the statute by an actionable invasion of privacy in fictionalized biographical material relating to plaintiff.

The theory of the case, as presented, was that fictionalization relating to plaintiff’s life was itself actionable under the statute as the New York courts have construed it. (See, e.g., Binns v. Vitagraph Co., 210 N. Y. 51; Goelet v. Confidential, Inc., 5 A D 2d 226; Koussevitzky v. Allen, Towne & Heath, 188 Misc. 479, affd. 272 App. Div. 759.)

The case was not based, therefore, on a consideration of “ reckless disregard of the truth ” or “ calculated falsehood ” in the sense the Supreme Court used these terms. If, upon re-examination it were found that the material complained of was merely ‘ ‘ innocent or negligent ’ ’ in writing and publication, it would seem then to be necessary to give judgment for defendants (Hill, p. 389 ). There seems to be no suggestion that the publication would be proved on a further examination to be more than that.

Even though the fictionalized parts were literally not true, the writer seems to have regarded the fiction as consistent with Spahn’s life and possible or even likely. As to certain dialogue complained of, for example, both sides stipulated in the record that it ‘‘ was written by the author to interpret what he thought the facts were ”.

The direction of movement of the cases interpreting the constitutionally shielded freedom of the press suggests that the protection to defendants should now be more broadly based than either the narrow grounds that would rest on the Hill criteria, or those laid down by our prior decisions. It does not seem probable, reading Hill and New York Times together, that fiction alone concerning a public figure, actionable under the New York statute as construed, is any longer actionable.

Spahn is a public figure by his own choice. He is not a public official coming literally within New York Times or Garrison, but the right to print and publish material about a public figure rests on similar policy considerations even though they are not chosen at elections after public debate on their merits. A vast area of public discussion would be closed off if the press could speak much less freely of public figures than of public officials.

At least no good reason exists for imposing sharp discrimination. The material complained of here is not much more a ‘ ‘ purely private defamation ’ ’ than writing false statements about State officers (Garrison, supra, p. 76).

Therefore, it should be held that as to a public figure willingly playing that role, the New York privacy statute gives no protection against fictionalization not shown to hurt him and not shown designed to hurt him. There is, in the term ‘‘ calculated falsehood ”, as used in New York Times and Hill, some of the traditional common-law overtones of meaning in the sense of wrongful injury.

To a fictionalized account of a public figure it is difficult to apply precisely the criteria of Hill or New York Times. All fiction is false in the literal sense that it is imagined rather than actual. It is, of course, “ calculated ” because the author knows he is writing fiction and not fact; and it is more than a ‘‘ reckless ” disregard for truth. Fiction is the conscious antithesis of truth.

These categorical assignments do not quite accurately encompass the situation of which Spahn complains and on which defendants claim their constitutional privilege to write and print. This can be met by holding that fiction concerning a public figure, if not actually damaging, is not actionable. There may be other situations in which a broader application of the privilege would be required, but this will meet the needs of the present case. The New York privacy statute should no longer be construed as creating a valid action in Spahn’s case.

The order should be reversed.

Judges Van Voorhis, Burke and Scileppi concur with Judge Keating ; Judge Bergan dissents and votes to reverse in a separate opinion in which Chief Judge Fuld concurs; Judge Breitel taking no part.

Order affirmed. 
      
       Even when some effort was made to cheek out these sources, the results were ignored if they interfered with the fictionalization of Mr. Spahn’s life. Thus, the author was informed by the Department of the Army that Mr. Spahn did not earn the Bronze Star in combat during World War II, although he was informed that the records were not absolutely accurate and that, if Mr. Spahn said he won the Bronze Star, it was likely that he did. Mr. Shapiro depicted Mr. Spahn as a Bronze Star winner even though he admitted that Mr, Spahn never stated that he had won the Bronze Star nor had he ever been quoted as saying so.
     