Before LUMBARD, Chief Judge, and FRIENDLY and HAYS, Circuit Judges.
Dr. Linus Pauling appeals from a judgment of the District Court for the Southern District of New York dismissing his complaint in an action for libel against the publisher of the New York Daily News after a verdict for the defendant. Federal jurisdiction is founded upon diverse citizenship. The principal claims are (1) error in submission of the defamatory nature of the publication to the jury, (2) the reception of evidence contended to be banned by the hearsay rule and failure to give proper instruction in regard to it, and (3) general unfairness by the trial judge. We affirm.
The alleged libel was an editorial published by the New York Daily News on September 2, 1961, shortly after the announcement of resumption of nuclear tests in the atmosphere by the Soviet Union.The article, which also contained photographs of the two persons named, is set forth in the margin*fn1
The answer denied that the article was defamatory and also pleaded various defenses, three of which are important on this appeal. A Third Defense alleged that "Insofar as the editorial complained of contains statements of fact relating to plaintiff, such facts are true in substance and in fact and insofar as it consists of comment, such comment is fair comment about such facts and relates to matters of public interest," was published in good faith and without malice toward plaintiff, and expressed defendant's honest opinion. A Fourth Defense asserted that plaintiff, having achieved a good professional reputation in education and scientific research, "became an outspoken advocate of causes, policies, organizations and individuals sympathetic to communism, and he sought wide-spread publicity for such advocacy," thereby creating "for himself a reputation that could not and did not suffer any damage by reason of the editorial complained of." A Sixth Defense set forth that the opinions expressed in the editorial "were based on information communicated to defendant by reliable persons and from reliable sources including prior publications (i) of legislative investigating committees of the United States of America and of the State of California, and (ii) of reputable news media" believed to be true by defendant, which published the editorial in good faith in the ordinary course of business and without malice.
Testimony of Dr. Pauling on direct and cross-examination developed his long and extensive pacifist efforts, including membership in "ten or twenty peace organizations," and, more particularly, his endeavors to stop nuclear testing. These included the submission of a petition by scientists to the United Nations to stop the testing of nuclear bombs in 1958*fn2; his initiation in 1958 of an action in the District of Columbia to enjoin the Secretary of Defense and other government officers from testing, regardless of what other nations were doing; his prosecution of this action, see Pauling v. Mc.elroy, 107 U.S.App.D.C. 372, 278 F.2d 252, cert. denied, 364 U.S. 835, 81 S. Ct. 61, 5 L. Ed. 2d 60 (1960), after unsuccessful efforts to lodge similar actions in Great Britain and the Soviet Union; discussing a test ban agreement with the ambassadors of the United States, Great Britain and the Soviet Union who were engaged in negotiations at Geneva; thereafter publicly stating that the Eisenhower administration was not putting forth its best efforts to obtain a test ban agreement, although making no similar charge with respect to the Soviet Union, and stating also his disappointment that the Kennedy administration during its first few months had not taken any significant action in the direction of a bomb test agreement. When the Soviet Union announced the resumption of nuclear testing in August, 1961, Dr. Pauling sent a letter and a telegram asking Premier Khrushchev to reconsider; he also wrote President Kennedy suggesting "that the United States might be able to refrain from resuming the testing of nuclear weapons, even though the Soviet Government might resume this testing, and that by refraining the United States might not be significantly damaged in a military way and would benefit immensely through the impact of our moral position." This was the background for the editorial.
(1) Judge Dawson told the jury that the first issue of fact it must decide was whether the editorial imputed "that Dr. Pauling is either disloyal or a Communist, or a Communist sympathizer." He said that "To accuse a man of being a traitor to his country, or of being a Communist or pro-Communist, is, of course, libelous," and that Dr. Pauling contended this was what the article meant. He then explained the News' contention that the article meant only that the policy of the United States had been to have nuclear weapons and weapon tests so long as there was no international agreement with adequate safeguards, and that as to this Dr. Pauling had not been "on the American side." Such an accusation, the judge charged, would not be libelous. The jury must thus determine whether the editorial "would convey to the ordinary man that Dr. Pauling had been a traitor to the United States, or was pro-Communist or anti-American, or whether it indicated, on the contrary, that he had merely expressed a view different from that of the particular government in power at that time."
We find nothing wrong with this charge. It is true that "If the language of a publication is unambiguous the question whether it is libelous per se is for the court" and that "it is libelous under New York law to write of a lawyer that he has acted as agent of the communist party and is a believer in its aims and methods," Wright v. Farm Journal, Inc., 158 F.2d 976, 978 (2 Cir. 1947). But the editorial here did not unambiguously accuse Dr. Pauling of being a Communist or pro-Communist or disloyal, although it could be so understood. The passages particularly relied on by the plaintiff are the reference to Premier Khrushchev as Dr. Pauling's "friend in the Kremlin" and the statement about now having Dr. Pauling "on the American side for once." But these must be read against the editorial's opening sentence truthfully stating that Dr. Pauling had long been "agitating against nuclear weapons and weapon tests" which the writer regarded as "the best defense the West has against Soviet Russian and Chinese Red manpower." The statements could carry at least two interpretations which were not defamatory: one that Dr. Pauling's public agitations, although not motivated by disloyalty, had unwittingly resulted in helping the Russian cause and harming the American; the other, even more innocuous, that Dr. Pauling was Khrushchev's "friend" in the sense that their opinions were often in agreement and that he was "on the American side for once" in that his views had usually been opposed to the official American Government position on disputed questions. The case was thus one where, under New York law, a jury might find the editorial defamatory, Sweeney v. United Feature Syndicate, Inc., 129 F.2d 904 (2 Cir. 1942); Grant v. Reader's Digest Ass'n, 151 F.2d 733 (2 Cir. 1945), cert. denied, 326 U.S. 797, 66 S. Ct. 492, 90 L. Ed. 485 (1946); Mencher v. Chesley, 297 N.Y. 94, 75 N.E.2d 257 (1947); Toomey v. Farley, 2 N.Y.2d 71, 78, 156 N.Y.S.2d 840, 845, 138 N.E.2d 221 (1956), - not one where the judge ought instruct that it was. Save when words are necessarily defamatory, "It is for the court in the first instance to determine whether the words are reasonably capable of a particular interpretation; it is then for the jury to say whether they were in fact so understood," Prosser, Torts 581 (1955); 1 Harper & James, The Law of Torts 463-64 (1956)*fn3
(2) Despite its position that the editorial did not in fact accuse Dr. Pauling of being a Communist or a pro-Communist, the News had to recognize that the jury might think otherwise. It could defend against that possibility by proving the truth of the allegedly defamatory statement. In support of the defense of truth the News brought out on cross-examination of Dr. Pauling a considerable number of items from which the jury could draw the inference that he was in fact a Communist sympathizer; from the News' standpoint it was important that this be done in some detail since the accumulation of instances might support an inference unwarranted from any one. The major portion of the trial was therefore devoted to questions intended to bring out Dr. Pauling's past association with Communist sympathizers and activities*fn4
The News was not required however to stake everything on the jury's accepting the defense of truth; it could fall back on its Third Defense of fair comment, and upon partial defenses including matters going to the extent of the damage and, under a New York statute, "mitigating circumstances, including the sources of * * * information and the grounds for * * * belief."*fn5 An extra-judicial assertion which the hearsay rule would bar as proof of the matter asserted may be admissible to establish one or more of these defenses on the basis that it is being "offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted," - in other words, that the fact of the offered utterance is relevant in and of itself, regardless of its truth. See 6 Wigmore, Evidence, § 1766 (3d ed. 1940); McCormick, Evidence, 463 (1954); Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 231-32 (1922); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 199 (1948).
The privilege of "fair comment," the so-called "rolled up" plea, Gatley, Libel and Slander, 447-78 (1960 ed.), is defined in A.L.I. Restatement, Torts, § 606, as follows:
"(1) Criticism of so much of another's activities as are matters of public concern is privileged if the criticism, although defamatory,
"(i) a true or privileged statement ...