Melvin M. Belli v. Orlando Daily Newspapers, Inc.

GODBOLD, Circuit Judge

(specially concurring):

I agree that the district court erred in dismissing the plaintiff’s complaint for failure to state a claim upon which relief could be granted. But as to some of the principles that will guide the district court in further proceedings, my views differ from those stated in the careful and scholarly opinion of the majority.

There are two aspects to the complex problem of defining the provinces of judge and jury in. a defamation case. The first involves a determination whether the publication complained of falls within one of the four categories which permit an action to be maintained without allegation or proof of special damages. Although the matter is not free from doubt, in Florida this question seems to be one for the court. McCormick v. Miami Herald Publishing Co., 139 So.2d 197 (Fla.App.1962); see Adams v. News-Journal Corp., 84 So.2d 549 (Fla.1955). Compare Miami Herald Publishing Co. v. Brautigam, 127 So.2d 718 (Fla.App.1961). The second concerns whether the published statement is defamatory. On this point there is general agreement that it is for the judge in the first instance to determine whether the words are capable of defamatory meaning; if so it becomes the duty of the jury to decide whether they are defamatory in fact. 1 Harper & James, Torts § 5.29 (1956); Prosser, Torts § 106 (3d ed. 1964). This does not preclude the judge from ruling, in an appropriate case, that the meaning of the publication is so unambiguous when construed in the sense in which ordinary readers would understand it that it is defamatory as a matter of law. Washington Post Co. v. Chaloner, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987 (1919). “If the article standing alone is plainly libelous, or manifestly wanting in any defamatory meaning, it is the duty of the court to declare either way and instruct the jury accordingly.” Newell, Slander & Libel 362 (3d ed. 1914). I fail to see any way in which reasonable men could construe the statements, oral and written, in this case in a nondefamatory sense, and would therefore hold them defamatory as a matter of law. The expressed doubt of the majority whether the newspaper statements could carry a nondefamatory meaning is but little less firm than my view. The role of the jury is not to be excised. Nor is that of judges. If the content of language is defamatory beyond cavil, freedom does not call for allowing the defamer to make a second attack on the victim’s reputation, though done in a judicial atmosphere, on the theory of showing that to the common mind the victim has not suffered in esteem. Judges deal regularly with questions of what ordinary and reasonable people do and think, in the field of constitutional liberties as well as elsewhere, and the properly exercisable judicial role is not diminished on *590the ground that reputation is what is injured.