Gerald L. K. Smith v. Albert Levitt

(concurring).

I concur in the result reached by Judge FEE for the reasons expressed in the last two paragraphs of his opinion.

Plaintiff Levitt sent to a congressional committee a telegram in which he said he had “what I believe to be irrefutable evidence that Senator Joseph McCarthy is, himself, a member of subversive organizations whose purpose is to overthrow the Government of the United States, by peaceable means if possible, but by force if necessary.” Plaintiff himself gave this communication to the newspapers in. Los Angeles, where it was published.

Defendant thereupon published in “The Cross and the Flag,” which is a periodical put out at intervals of one *857 month with a circulation of about twenty-five thousand copies, a reply to this telegram, which was there set out in full. The gist of this publication was the statement that the telegram was:

and the supporting note:

Plaintiff thereupon filed an action for damages for defamation in the federal court on the basis of diversity of citizenship. The case was tried before a judge without a jury by stipulation. A judgment was entered for $750.00 against defendant, who brought this appeal.

The trial court took the position that the publication by Smith was libelous in and of itself without proof of damage. In this we agree. Next, it was held in…

227 F.2d 855 Gerald L. K. SMITH, Appellant, v. Albert LEVITT, Appellee. No. 14420. United States Court of Appeals Ninth Circuit. July 22, 1955. Bertrand L. Comparet, San Diego, Cal., for appellant. Albert Levitt, in pro. per. Before STEPHENS and FEE, Circuit Judges, and TAYLOR, District Judge. JAMES ALGER FEE, Circuit Judge. 1 Plaintiff Levitt sent to a congressional committee a telegram in which he said he had 'what I believe to be irrefutable evidence that Senator Joseph McCarthy is, himself, a member of subversive organizations whose purpose is to overthrow the Government of the United States, by peaceable means if possible, but by force if necessary.' Plaintiff himself gave this communication to the newspapers in Los Angeles, where it was published. 2 Defendant thereupon published in 'The Cross and the Flag,' which is a periodical put out at intervals of one month with a circulation of about twenty-five thousand copies, a reply to this telegram, which was there set out in full. The gist of this publication was the statement that the telegram was: 3 '* * * an obvious concoction, a lie from the whole cloth, released by Albert Levitt * * *' 4 and the supporting note: 5 Plaintiff…