Commercial Speech, Content Regulation / Censorship, Defamation / Reputation
R. v. Guignard
Closed Contracts Expression
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On February 10, 1936, the U.S. Court of Appeals for the Second Circuit held that an unintentionally offensive photograph of plaintiff Crawford Burton, as well as its publication, were actionable as libel against defendant Crowell Publishing. Burton brought a libel case against the defendant after it published an advertisement he consented to appear in. The advertisement featured two photographs for which Burton had posed—one of which appeared “grotesque, monstrous, and obscene” because of the placement of Burton’s saddle. Burton’s saddle was placed in such a way as to give the impression of a significant protrusion in his groin area. The Court held that even though the photograph was not deliberately produced to create the impression of a “lewd deformity,” the effect was the same, deliberate or not. Libel, the Court explained, is not confined narrowly to those published materials that affect the reputation of the victim’s character, where character only implies moral qualities. According to the Court, the picture created a caricature that subjected the plaintiff to “ridicule” and “contempt.” Furthermore, the Court held that because the advertisement was calculated to expose the plaintiff to ridicule it was actionable, and the fact that the advertisement did not presume to state a fact or an opinion about the plaintiff was irrelevant. In addition, the Court held that Burton’s consent to the use of the photograph for the advertisement did not preclude action for libel because the photograph was not shown to the plaintiff before publication.
The plaintiff in this case was Crawford Burton, was a well-known and popular “gentleman steeple-chaser”—a horse racer—who was the subject of a Camel brand cigarette advertisement published by the defendant, Crowell Publishing. The advertisement featured two photographs of Burton. The larger of the two pictures featured the plaintiff in riding shorts and breeches with a cigarette in one hand and a cap and whip in the other. The caption underneath read: “Get a lift with a Camel.” Neither this photograph nor the caption were at issue in this case. The second, smaller photograph, in the upper left-hand corner of the advertisement, showed Burton coming from a race. “He is carrying his saddle in front of him and the line of the seat is about twelve inches below his waist and, over the seat at his middle, a white girth falls in such a way that it seems to be attached to the plaintiff and not to the saddle.” The caption underneath read: “When you feel ‘all in.’” According to Burton, the photograph appeared lewd and obscene due to the positioning of the hanging piece of Burton’s saddle, and the obscenity was reinforced by the innuendo implied when taken together with the captions.
While Burton had posed for the photographs and had been paid for his participation in the advertisement, he was not shown the photographs prior to publication. Burton brought a complaint for libel in the U.S. District Court for the Southern District of New York. The court “held that the advertisement did not hold the plaintiff up to the hatred, ridicule, or contempt of fair-minded people,” and that regardless he consented to the use of the photograph, and as such the court dismissed the complaint upon the pleadings. Burton appealed this decision before the Court of Appeals for the Second Circuit.
Judge Learned Hand delivered the opinion for the Second Circuit. The issue before the Court was whether the level of ridicule and offense caused to Burton by the publication of his picture, which made him appear to be indecently exposing himself, was in fact actionable as libel.
The plaintiff argued that the photograph was “susceptible of being regarded as representing him as guilty of indecent exposure and as being a person physically deformed and mentally perverted.” He further argued that when some of the text was read alongside the photograph it falsely represented him as an “utterer of salacious and obscene language.” Finally, he argued that in the aftermath of the publication he had been subjected to frequent “ridicule, scandal, reproach, scorn, and indignity.”
For its part, the defendant argued that “libel must affect the plaintiff’s character,” affecting their reputation with regard to conventional moral values. Because the advertisement did not impact Burton’s reputation, Crowell said, it should not be considered libel.
While the Second Circuit’s decision conceded the fact that the advertisement does not “read to say that the plaintiff was deformed, or that he had indecently exposed himself, or was making obscene jokes,” and acknowledged that the picture is clearly an optical illusion, the Court still held that defamation was a valid claim because the publication exposed Burton to “overwhelming ridicule.”
The Court dismissed the defendant’s argument regarding character, pointing out that there are many libels that do not affect the reputation of the victims with regard to moral qualities. The Court cited many examples of cases in which there was a libel based on statements that merely reflected established facts. For example, it is a libel to say someone is insane (Totten v. Sun Printing & Publ’g Co., 109 F. 289 (Cir. Ct. S.D.N.Y. 1901)), that they are illegitimate (Shelby v. Sun Printing & Publ’g Ass’n, 38 Hun 474 (N.Y. Sup. Ct. 1886)), or that they had a relative who committed a crime (Van Wiginton v. Pulitzer Pub’g Co., 218 F. 795 (8th Cir. 1914)).
The defendant had also argued that, because the truth is always a defense against libel, a libel must be a statement about a person that is either true or false. Because the alleged libel here was a photograph, it was not a statement, and therefore could not be “true” or “false.” The Court rejected this argument. While under the common law, the truth is held in such high regard that the truth of a matter excuses its utterance, that does not necessarily mean that statements not susceptible to truth or falsehood (such as photographs) can never be libel. When there is an interest protected by law, which in this case was Burton’s interest in maintaining his reputation and protecting himself from ridicule, the defendant must find some excuse for intruding on that interest, and the truth would be a defense if it could be pleaded. However, the truth is a defense not because a libel must be false, but because the law puts the protection of truth before the protection of reputation.
The only issue, in this case, was whether this advertisement could be considered libel and, in turn, whether there could be a valid claim of defamation. Defamation is the legal term for any false statement that injures someone’s reputation; libel, a form of defamation, is a written or published defamatory statement. The Court held that the ground for legal action for defamation is “not so much the injury to reputation, measured by the opinions of others, as the feelings, that is the repulsion or the light esteem, which those opinions engender.” As such, the Court concluded that the plaintiff had been ridiculed substantially enough to complain.
The Court also opined that there was no countervailing interest in truth and that the defendant therefore had no excuse for the effect of the photograph on the plaintiff’s reputation. The Court held that the photograph, taken with the captions, exposed the plaintiff to “more than trivial ridicule” and was therefore prima facie actionable. The advertisement, the Court said, did not assume to state a fact or opinion and therefore could not necessarily be true or false, but the ridicule it exposed the plaintiff to and the lack of countervailing interest on the part of the defense made the publication actionable as a libel.
Additionally, the Court held that Burton’s initial consent to the use of the photograph in the advertisement did not void any defamation claims, as the district court had believed. While he did give permission for his picture to be used in the advertisement, he was never shown the pictures after they were taken but prior to publication. Additionally, he had no reason to believe that the photograph that was taken would create such an impression of vulgarity. If he had known the picture would look the way it did, the Court held, he likely would have never consented to its publication.
Therefore, the Second Circuit held that there was an actionable defamation claim and that the advertisement may in fact have constituted a libel. The Court found that Burton had experienced substantially enough ridicule to complain, and despite the publication’s not making a statement of fact that could be disputed as true or false, the damage it inflicted on Burton and the invasion of his protected interests without a valid excuse rendered the publication actionable as a libel. As such, the judgment of the lower court was reversed, and the case was remanded for trial.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Second Circuit likely contracts free expression in this case by expanding the definition of what can potentially be tried as libel. The Court held that libel is not constrained to those statements and images that affect the plaintiff’s reputation with regard to conventional moral values. Instead, a statement may be libel where it is “calculated to expose the plaintiff to more than trivial ridicule.” Additionally, the court held that a publication does not necessarily need to assert a fact that can be categorized as either true or false to be actionable as libel.
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