(dissent-ting).
I think Sweeney v. Patterson, 76 U.S.App.D.C. 23, 128 F.2d 457, requires reversal of the present judgment.
Patterson’s newspaper had charged Congressman Sweeney with opposing a pending judicial appointment for antisemitic reasons. The Congressman sued the publisher for libel. Although the charge was plainly defamatory and therefore libelous, the District Court granted the defendant’s motion for judgment on the pleadings. The plaintiff appealed, and we affirmed the judgment. We said: “Even if the [appellees’] statements are false, appellant has stated no claim on which relief can be granted. The cases are in conflict, but in our view it is not actionable to publish erroneous and injurious statements of fact and injurious comment or opinion regarding the political conduct and views of public officials, so long as no charge of crime, corruption, gross immorality or gross incompetence is made and no special damage results. Such a publication is not ‘libelous per se.’ We need not consider whether it is privileged. Appellant might be entitled to relief if he had lost his seat in Congress, or had lost employment, as a lawyer or otherwise, or had been put to expense, or had suffered any other economic injury, by reason of appellees’ statements. We do not decide that question, since it is not before us. Appellant alleges no such injury.” 76 U.S.App.D.C. at page 24, 128 F.2d at page 458.
We used the words “not ‘libelous per se’ ” in the technical sense of “not actionable without special damage”. General Vaughan, like Congressman Sweeney, alleges no special damage.
General Vaughan complains of these words and no others: “Many Pearson charges against Harry Vaughan were later confirmed by testimony before Senate committee.” If we assume in the plaintiff’s favor that these words convey “erroneous and injurious statements of fact and injurious comment or opinion”, it appears to me that the rule of the Sweeney case exactly fits this case and the defendant is entitled to a directed verdict.
Vaughan, like Sweeney, was a public official. He was one of seven persons pictured on a page of the Saturday Evening Post under a general heading “Pearson has many enemies”. The six others were a Senator, two Congressmen, two cabinet officers, and a “lobbyist”. This context makes it clear, and the plaintiff concedes, that the “charges”, whatever they may have been, concerned his conduct as a public official. They concerned, in other words, his “political conduct”.1
It seems to me obvious that here, as in Sweeney, “no charge of crime, corruption, gross immorality or gross incompetence is made * * 76 U.S.App. D.C. at page 24, 128 F.2d at page 458. Directly under the plaintiff’s picture and the caption he complains of, the defendant printed a picture of Secretary Hurley, with the caption “[Pearson’s] long feud with Hoover’s Sec. of War Patrick J. Hurley rocked the capital.” Lower down was a picture of the late Secretary Forrestal, with the caption “Friends of Defense Secretary James Forrestal claimed Pearson’s relentless attacks helped drive the Secretary to suicide”. Another picture bore the caption: “Forrestal’s funeral cortege. [Pearson] reports that after this tragedy, he felt ‘an almost paralyzing urge’ to take his own life.” That the Post, elsewhere on the same page, expressly mentioned criminal *32convictions of two other men does not, in my opinion, permit an inference that it impliedly attributed criminal conduct to Secretary Hurley, or to Secretary Forrestal, or to General Vaughan. I think we should hold as a matter of law that readers of the Post would not ordinarily draw such an inference. “ ‘A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. * * * ’ ” Washington Post Co. v. Chaloner, 250 U.S. 290, 293, 39 S.Ct. 448, 63 L.Ed. 987. It seems to me clear that readers would ordinarily understand the “charges against Harry Vaughan”, which were said to be “confirmed by testimony” not before a court or a grand jury but “before Senate committee”, to be charges of impropriety, not of crime. Readers know that some kinds of official conduct, such as accepting expensive hospitality from persons who are asking for official favors, are not criminal but are commonly, deplored and often made the subject of “charges” by columnists.
In my opinion the principle of the Sweeney case would have entitled the defendant to a directed verdict even if the publication had implied some minimal charge of crime. To hold, as we held in Sweeney, that it is not actionable to publish injurious statements regarding the political conduct of a public official “so long as no charge of crime, corruption, gross immorality or gross incompetence is made”, is not to say that every statement which does charge a public official with any one of those things is actionable. Sweeney contains no such dictum. Besides being irrelevant to the question we had to decide, any such dictum would have been inconsistent with the reasons we gave for our decision: “Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. * * * Everyone, including [the defendants] and their readers, has an interest to defend, and any one may find means of defending it. The interest of the public here outweighs the interest of [the plaintiff] or any other individual. The protection of the public requires not merely discussion, but information. * * * Errors of fact * * * are inevitable. Information and discussion will be discouraged, and the public interest in public knowledge of important facts will be poorly defended, if error subjects its author to a libel suit without even a showing of economic loss.” 76 U.S.App.D.C. at page 24, 128 F.2d at page 458.
Although here, as in Sweeney, we need not consider whether the publication is “privileged” or, on the contrary, would have involved liability if there had been a showing of economic loss, the analogy of privilege is close. Where a privilege exists, it extends to a charge of crime. For example, in Dickins v. International Brotherhood of Teamsters, 84 U.S.App.D.C. 51, 53-54, 171 F.2d 21, 23-24, the defendants’ magazine had charged the plaintiff with committing a series of unprovoked assaults. The alleged assaults were clearly criminal. We held that the charge of crime was within the defendants’ privilege of defending themselves against charges the plaintiff had made against them. No reason appears why the analogous Sweeney principle should not likewise cover a charge of crime.
In Barr v. Matteo, the Supreme Court, reversing this court, held that a public official’s injurious words “within the outer perimeter of [his] line of duty” were absolutely privileged. 360 U.S. 564, 575, 79 S.Ct. 1335, 1341. The five Justices who concurred in the Court’s judgment did not concur in an opinion. Four joined in an opinion which did not turn upon the fact that the injured plaintiffs were themselves public officials. But Mr. Justice Black, one of the five who concurred in the judgment, said: “The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees. Such an informed understanding depends, of course, on the *33freedom people have to applaud or to criticize the way public employees do their jobs, from the least to the most important.” 360 U.S. at page 577, 79 S.Ct. at page 1342.
. The definition of “political” in Webster’s New International Dictionary, 1952 ed., begins: “Of or pertaining to polity, or politics, or the conduct of government, referring in the widest application to the judicial, executive, and legislative branches; of or pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of government; * * * ”