
    Herman Weiner, Appellant, v Doubleday & Company, Inc., et al., Respondents.
    Argued November 14, 1989;
    decided December 14, 1989
    
      POINTS OF COUNSEL
    
      Murray Kagel, Lyman Stansky and Richard E. Mischel for appellant.
    I. Accusations of criminal or illegal activity even in the form of opinion are not constitutionally protected. (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Cianci v New Times Publ. Co., 639 F2d 54; Silsdorf v Levine, 59 NY2d 8; Meyer v Somlo, 105 AD2d 1007; Jordan v Lewis, 20 AD2d 773; Chalpin v Amordian Press, 128 AD2d 81; Ollman v Evans, 750 F2d 970.) II. The opinion of the court below affirming the lower court’s opinion that as a matter of law plaintiff was a private figure but by reason of the mention of him in the book "Nutcracker,” considered to be a writing in the public interest, as a matter of law, holding Weiner to the standard of proving gross irresponsibility instead of ordinary negligence is error. (Lerman v Chuckleberry Publ., 521 F Supp 228; Gaeta v New York News, 62 NY2d 340.) III. It was error to conclude that defendant Alexander has responsibly researched the defamatory opinions so as to sufficiently confirm them for publication in the face of a record bare of any proof of investigation, any validation or any substantiation. (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; New York Times Co. v Sullivan, 376 US 254; Gaeta v New York News, 62 NY2d 340; James v Gannett Co., 40 NY2d 415.) IV. Plaintiff has sustained, by a preponderance of the evidence, his burden of establishing falsity. (Oates v Marino, 106 AD2d 289; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369.) V. Plaintiff has established libel per se, damages to reputation and emotional and mental anguish. (Mencher v Chesley, 297 NY 94; Sharon v Time Inc., 575 F Supp 1162; Buckley v Littell, 394 F Supp 918, 539 F2d 822.) VI. Summary judgment for plaintiff was properly granted because he has established that there are no triable issues as to the unambiguous language in suit and its falsity. He has established by a preponderance of the admissible evidence that respondents have acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties. It was error to grant summary judgment to defendants and to dismiss plaintiff’s complaint. (Moore v Francis, 121 NY 199; Oates v Marino, 106 AD2d 289.)
    
      Victor A. Kovner, Harriette K. Dorsen, Katherine Trager, Laura R. Handman and Pamela M. Parker for respondents.
    I. The language in suit, read in context, does not contain defamatory statements of fact as a matter of law. (Gertz v Robert 
      
      Welch, Inc., 418 US 323; Hotchner v Castillo-Puche, 551 F2d 910, cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Ollman v Evans, 750 F2d 970, 471 US 1127; Mr. Chow of N. Y. v Ste. Jour Azur, 759 F2d 219; Janklow v Newsweek, Inc., 788 F2d 1300, 479 US 883; Information Control Corp. v Genesis One Computer Corp., 611 F2d 781; Steinhilber v Alphonse, 68 NY2d 283; Cianci v New Times Publ. Co., 639 F2d 54.) II. Respondents acted at all times with due consideration for the standards of information gathering and dissemination followed by responsible publishers. (Gertz v Robert Welch, Inc., 418 US 323; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Cottom v Meredith Corp., 65 AD2d 165, 46 NY2d 711; Lerman v Chuckleberry Publ., 521 F Supp 228; Campo Lindo for Dogs v New York Post Corp., 65 AD2d 650; Zetes v Rich-man, 86 AD2d 746; Gasta v New York News, 62 NY2d 340; Karaduman v Newsday, Inc., 51 NY2d 531; Long Is. Cent. Sta. v New York Tel. Co., 54 AD2d 893; Pollnow v Poughkeepsie Newspapers, 107 AD2d 10, 67 NY2d 778.) III. In any event, summary judgment is not available to appellant because respondents have established, at the least, that there are triable issues regarding the construction of the language in suit, satisfaction of the applicable standard of care and substantial falsity. (Karaduman v Newsday, Inc., 51 NY2d 531; Mr. Chow of N. Y. v Ste. Jour Azur, 759 F2d 219; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; James v Gannett Co., 40 NY2d 415; Matherson v Marchello, 100 AD2d 233; Davis v Costa-Gavras, 619 F Supp 1372; Philadelphia Newspapers v Hepps, 475 US 767; Fairley v Peekskill Star Corp., 83 AD2d 294.)
    
      Edward A. Miller and Slade R. Metcalf for Association of American Publishers, Inc., and another, amici curiae.
    
    I. Read in context, the statements at issue constitute nonactionable opinion, not defamatory statements of fact. (Gertz v Robert Welch, Inc., 418 US 323; Hotchner v Castillo-Puche, 551 F2d 910, cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834; Steinhilber v Alphonse, 68 NY2d 283; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Ollman v Evans, 750 F2d 970; Mr. Chow of N. Y. v Ste. Jour Azur, 759 F2d 219; Janklow v Newsweek, Inc., 788 F2d 1300, 479 US 883; Information Control Corp. v Genesis One Computer Corp., 611 F2d 781; Price v Viking Penguin, 881 F2d 1426; Potomac Valve & Fitting v Crawford Fitting Co., 829 F2d 1280.) II. A publisher acts responsibly, and in conformity with established standards, when it relies on the research product of a writer of proven reputation. (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Nelson v Globe Intl., 626 F Supp 969; Ortiz v Valdescastilla, 102 AD2d 513; Karaduman v Newsday, Inc., 51 NY2d 531; Masson v New Yorker Mag., 686 F Supp 1396; Geiger v Dell Publ. Co., 719 F2d 515.) III. Summary judgment is particularly favored in defamation cases. (Washington Post Co. v Keogh, 365 F2d 965, 385 US 1011; Karaduman v News-day, Inc., 51 NY2d 531; New York Times Co. v Sullivan, 376 US 254; Speiser v Randall, 357 US 513; Smith v California, 361 US 147.)
    
      Arthur N. Eisenberg and Kenneth P. Norwick for New York Civil Liberties Union, amicus curiae.
    
    A full contextual analysis of the statements at issue here supports the conclusion of the court below that such statements constitute opinion and do not, therefore, give rise to a suit in defamation. (Steinhilber v Alphonse, 68 NY2d 283; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Hotchner v Castillo-Puche, 551 F2d 910; Curtis Publ. Co. v Birdsong, 360 F2d 344; Greenbelt Publ. Assn. v Bresler, 398 US 6; Silberman v Georges, 91 AD2d 520; Janklow v Newsweek, Inc., 788 F2d 1300.)
   OPINION OF THE COURT

Kaye, J.

The pivotal issue in this libel action, brought by a plaintiff who is not a public figure against the author and publisher of a nonfiction book, is whether defendants’ investigation of allegedly defamatory statements was sufficient to shield them from liability, or whether they "acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196,199.)

Defendant Shana Alexander, a well-known journalist, wrote a book entitled "Nutcracker: Money, Madness, Murder: A Family Album,” published by codefendant Doubleday & Company. "Nutcracker” is a nonfictional exploration of the Salt Lake City murder of Mormon multimillionaire Franklin Bradshaw, a murder which Bradshaw’s then 17-year-old grandson Marc Schreuder was convicted of committing. At a subsequent trial, based on Marc Schreuder’s testimony, his mother— Franklin Bradshaw’s daughter — Frances Bradshaw Schreuder, was convicted of planning the murder and dispatching Marc to carry it out.

Although "Nutcracker” attempts to reconstruct the murder and surrounding events, the book is more than a blow-by-blow account of the crime. Rather, it purports to be a searching inquiry into the Bradshaw family’s history of emotional disturbance, with particular focus on family influences in the formation of Frances Schreuder’s personality. Schreuder is portrayed as a person whose deep emotional disturbances were manifested in varied extreme forms, including child abuse, persistent lying and two stormy, broken marriages. The primary sources of Alexander’s psychological portrait are the other members of the extended Bradshaw family and Richard Behrens, Frances Schreuder’s only friend and confidant during much of the period covered by the book.

The statements that give rise to this defamation action appear in a section of "Nutcracker” that is prefaced as follows: "Details of Frances’s domestic existence must of necessity be reconstructed from the recollections of other members of her always carefully locked and guarded household: children, ex-husbands, ex-servants, Behrens and Berenice [Schreuder’s mother] — her only visitors. Not the best of sources in any circumstances, especially these”. Sevéral pages later appear the two paragraphs that contain the book’s only reference to plaintiff:

"In 1966 Frances put herself for two years under the care of a Park Avenue psychiatrist named Herman Weiner, who seems to have encouraged his patient to stand up to her overprotective mother. Berenice was attempting to infantilize her, Frances decided. She told Marc that Granny had a neurotic need for 'babies to smother,’ which could account for Berenice’s intense dislike of the man she began to habitually refer to as 'Weenie, the big, fat, ugly Jew.’
"Robert Reagan remembers Dr. Weiner arriving in court to testify for Frances, during the divorce proceedings, eccentrically costumed in bright red slacks and a loud plaid jacket. Marilyn Reagan remembers the size of one of his bills: Frances owed her psychiatrist $3,000. 'My understanding was that her problem was inability facing reality,’ says Marilyn. The huge unpaid bill made her sister think it might be the psychiatrist who had this problem, not his patient. Later, when Behrens claimed that 'Frances always slept with her shrinks,’ the Reagans said they were not at all surprised. They’d suspected 'hanky panky,’ they confessed. Berenice has said the same.”

Plaintiff contends that the sentence "Frances always slept with her shrinks,” read in the context of the rest of the paragraph, defamed him, as it falsely accused him of having sexual relations with his patient.

In response, defendants contend that the challenged statements are simply not specific enough to be defamatory and, in any event, are a constitutionally protected expression of "opinion” as to which no claim of defamation will lie. Alternatively, defendants argue that the statements concern a subject "reasonably related to matters warranting public exposition” (Chapadeau v Utica Observer-Dispatch, 38 NY2d, at 199, supra), and that plaintiff has failed to demonstrate — as he must to prevail on a claim of defamation with respect to such subject matter — that defendants acted without due consideration for responsible standards of information gathering and dissemination (id.). Reversing the trial court, which had directed summary judgment for plaintiff on the issue of liability, the Appellate Division granted defendants’ joint cross motion for summary judgment and dismissed the complaint, on the basis of all three somewhat inconsistent grounds asserted by defendants (142 AD2d 100). We now affirm, on the last ground alone.

At the outset, we reject defendants’ contention that under common law, the challenged statements are not susceptible of the defamatory meaning ascribed to them by plaintiff. Whether the contested statements are reasonably susceptible of a defamatory connotation is in the first instance a legal determination for the court. In analyzing the words in order to make that threshold decision, the court must not isolate them, but consider them in context, and give the language a natural reading rather than strain to read it as mildly as possible at one extreme, or to find defamatory innuendo at the other (see, James v Gannett Co., 40 NY2d 415, 419-420).

Applying these principles, we conclude that in this case the sentence "Frances always slept with her shrinks” is reasonably susceptible of a defamatory meaning. In isolation, it might be mere exaggeration or hyperbole, as defendants contend; removed from its context in the book, the confirmation by Frances’ relatives that they suspected "hanky panky” might be pure speculation. But viewing the quoted paragraphs as a whole, as we are obliged to do, the focus is not on Frances’ promiscuity in general or on her relationship with psychiatrists in general, but on plaintiff alone and his relationship with Frances. Contrary to defendants’ claim, it is not so unmistakably clear that the sole purpose of these paragraphs is to demonstrate the hostility of Frances’ family and Behrens toward the psychiatric profession that a more specific defamatory connotation may not also be understood.

We next turn to defendants’ claim under the First Amendment to the Federal Constitution. It is settled that expressions of opinion, in contrast to assertions of fact, are privileged and, however offensive, may not be the subject of an action for defamation (Steinhilber v Alfonse, 68 NY2d 283). Defendants argue that this protection applies to the language singled out by plaintiff.

According to defendants, Alexander’s method in assembling the "family album” was simply to recount the memories of those close to Schreuder, often in their own words, and to present sometimes conflicting points of view without necessarily attempting to reconcile them. Defendants characterize the book as "a kaleidoscope of often uncertain impressions”. This indeed is an accurate description of Alexander’s technique; at several points she casts doubt on the accuracy and veracity of her informants. The resulting document, of a sort not entirely unfamiliar to readers of "true crime” accounts, is a hybrid genre. Largely a pastiche of statements by interviewees who are unendorsed and at times openly disparaged by Alexander herself, it eludes ready classification as "fact” or "opinion.”

Defendants’ efforts to fit the challenged statements into the protected "opinion” classification are predicated upon the peculiar genre of the work. In essence, defendants contend that because the statements merely summarize the contents of interviews with third persons, and because Alexander herself lends no authorial endorsement to the statements of Behrens and the Bradshaw family (and in fact elsewhere suggests that the reader might be well advised to reserve a measure of skepticism for their judgments), the average reader would be disinclined to assume that "Frances always slept with her shrinks” was an accurate statement of fact. Therefore, the argument concludes, inasmuch as the universe of libel law is divided into "fact” and "opinion,” the statements must be "opinion.”

As literary criticism, defendants’ claim may be unassailable. As a statement of law, it is problematic. We are not unmindful that the technique employed by Alexander is a popular one, and that presentation of the unedited statements and views of the subjects of a documentary work may be integral to the author’s purpose, as Alexander states (see, e.g., Price v Viking Penguin, 881 F2d 1426, 1444-1445 [8th Cir]). That Alexander’s voice can be separated from the voice of her subjects does not, however, necessarily transform their otherwise factual assertions into her "opinion.” Indeed, in Hogan v Herald Co. (58 NY2d 630, affg 84 AD2d 470, 476-480 [Simons, J.]), we rejected a claim that a "neutral reporting” privilege should be extended to a newspaper that published an objective report of newsworthy charges with proper attribution to sources. While the defendants in that case did not frame their contention in terms of "opinion,” the protection sought differed little from that asserted by defendants here — a privilege to repeat the statements of third parties so long as no endorsement was given.

The "fact/opinion” distinction in the law of defamation is an evolving one. As courts are increasingly sensitive to the effect of protracted litigation on the delicate balance between protection of a free press and protection of individual reputation, "opinion” has come to mean more than it does outside the libel law context (see, e.g., Immuno, AG. v Moor-Jankowski, 74 NY2d 548 [decided today]; Price v Viking Penguin, 881 F2d 1426, supra; Ollman v Evans, 750 F2d 970 [DC Cir], cert denied 471 US 1127).

We leave for another day, however, the question whether "opinion” protection should be enlarged to encompass the type of work that is the focus of the present controversy. Defendants have merely insisted that the challenged statements must be deemed opinion as a matter of settled law, and we conclude that this argument should be rejected. Important though it is to eschew rigidity in the area of First Amendment concerns, on this record of briefing and argument we have no basis for considering any alteration in the sensitive policy balance that has been struck to date. Instead, we move to the third ground urged by defendants — the adequacy of their investigatory process — and on this ground we conclude that they must prevail.

We agree with the Appellate Division that the challenged statements were sufficiently confirmed for publication. Preliminarily, we are satisfied that the standard to be applied in determining defendants’ liability is that set forth in Chapadeau v Utica Observer-Dispatch (supra). In Chapadeau, we held that "where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition,” the defamed party must establish "that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” (38 NY2d, at 199, supra.)

We are únpersuaded by plaintiff’s contention that a simple negligence standard should govern. Plaintiff does not dispute that the general subject of "Nutcracker” falls within the Chapadeau guidelines, but argues that the particular topic of his relationship with Frances Schreuder is a detour from legitimate public concern into the realm of mere gossip and prurient interest. This is precisely the sort of line-drawing that, as we have made clear, is best left to the judgment of journalists and editors, which we will not second-guess absent clear abuse (Gaeta v New York News, 62 NY2d 340, 349). "Nutcracker” is, in part, clearly intended as an inquiry into the failure of family and professional figures to halt the progression of Schreuder’s illness before it resulted in murder. Her relationship with plaintiff is not so remote from that subject as to constitute a clear abuse of editorial discretion.

Plaintiff has failed to come forward with evidence sufficient to raise a triable issue of fact as to whether defendants satisfied their duty of care under Chapadeau.

As to defendant Doubleday, as the Appellate Division noted, citing Geiger v Dell Publ. Co. (719 F2d 515 [1st Cir]), to require a publisher to do original research with respect to every potentially defamatory reference would impose undue financial burden (142 AD2d, at 107). We have held that without "substantial reasons” to doubt the accuracy of the material or the trustworthiness of its author, a publisher is entitled to rely on the research of an established writer (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 382-383, cert denied 434 US 969; see also, Karaduman v Newsday, Inc., 51 NY2d 531, 551). Doubleday both relied on Alexander, whose experience and reputation are unquestioned, and conducted its own review of the contents of the book. The circumstances of this case did not require it to go further in order to meet its obligation under Chapadeau.

That burden was also met by defendant Alexander. She employed an experienced researcher, who several times interviewed Behrens. Alexander herself interviewed the Reagans and Berenice Bradshaw, the only other people likely to be at all familiar with Frances Schreuder’s "carefully locked and guarded household.” The challenged paragraphs accurately summarize the statements made to Alexander and her researcher. Plaintiff does not dispute that Behrens was Frances Schreuder’s confidant during the period she was in treatment with plaintiff, and knowledgeable about the details of Schreuder’s personal life. This was additionally demonstrated by Behrens’ testimony at Schreuder’s trial, which revealed his intimate knowledge of her life.

The independent views of the Reagans and Berenice Bradshaw tended to corroborate Behrens’ statements. More importantly, the accuracy of the statement was further confirmed by the fact that a friend of both Schreuder and Behrens who was interviewed recalled that Behrens had earlier related the same information to her. In short, reasonable confirmation of the statement was obtained, given the narrow circle of people whom it would have been productive to question.

Accordingly, no triable issue having been raised as to defendant’s gross irresponsibility, the Appellate Division’s order awarding summary judgment to defendants should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs. 
      
       In his original complaint, plaintiff claimed that other portions of the two paragraphs were also defamatory, but he does not press those claims on this appeal.
     