PROBLEMS OF DEFAMATION IN CONNECTION WITH(Sanitized)PUBLICATIONS.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP57-00384R001100050080-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 9, 2016
• Document Release Date: April 16, 2001
• Sequence Number: 80
• Content Type: REPORT

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PROBLEMS OF DEFAMATION IN CONNECTION
WITH ~ PUBLICATIONS.
The question is raised by
of the
whether there might
be ?a- liablaity either to CIA or to order the laws
of defamation should libelous statements be republished
in the course of reproduction of monitored broadcasts.
The right to sue the United States for tort claims is
controlled by the Federal Tort Claims Act of 1946. How-
ever, the provisions of this law specifically exclude
any claims arising out of libel or slander (28 U.S.C.A.
94+3 h). Therefore, the question arises as to whether
the Director of Central Intelligence or any of his
subordinate employees could be held personally liable
in an action arising out of defamatory statements pub-
lished by the _in the United States. The question
of such a possibility in I should be explored by
the ~
In order to determine possible personal
liability a study of the law,i of defamation is set
forth herewith. It should commence with a definition
of teems so that a full understanding of the problems
may be had.
Defamation is an attack on the reputation of
another by false publications :te~~dW l to bring one
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into disrepute, to lower one in the estimation
of the commnanity, and teXOZag to bring one into disgrace
and dishonor. Defamation includes the concept of injury
to reputation by calumny and aspersion by lying. The pub-
lication may be by the spoken or the written word.
Libel and slander are methods of defamation,
the former by the written, the latter by the spoken word.
Slander is defamation by spoken words which
tend to prejudice the reputation, office, trade, business,
or means of getting a living of another. Action for
slander is not considered in this paper, as th~
ST/TiNTLications are written and not spoken ones.
Libel is a malicious publication expressed in
printing or writing or by pictures, tending to blacken one's
reputation and to expose one to public hatred, contempt or
4-rr r~r'_
ridicule. In its meetgenerus-sense it may be said that
any publication that is injurious to the reputation of
another is a libel. A writing within the law of libel is
not limited to manuscripts and books; it can include short-
hand notes, provided what is so written is intelligible to
the reader; it can also include the teletyped - reports
which arrive and are posted in the office.
Everyone has the right to enjoyment of good
reputation, of which DD ore may be deprived through falsehood
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and malice without liability therefor. 4 Written words~a*ieh--
ar..e-published;are ordinarily actionable per se as libelous
if they tend to expose a person to public hatred, contempt,
ridicule, aversion, or disgrace; induce an evil opinion of
one in the minds of right-thinking persons and deprive one
of their friendly intercourse in society; injure one in his
profession, trade, or business, including imputing lack of
knowledge, skill, or capacity to conduct a business or
occupation, want of integrity, competence or fitness; pro-
fessional injury including both office and employment, not
only of public officers but also officers and employees in
private business; an attorney in his profession; imputing
malfeasance og misfeasance in office, neglect of official
duty, or similar charges which would engender loss of public
confidence; showing want of integrity or capacity as a
public official/ @Pr employee, 'judge, member F or candidatep
of legislative bodies; political corruption or bribery;
imputing crime, fraud 'A dishonesty.
Action for libel undertakes to grant redress
for all of the injurious consequences inflicted by the
defamatory words. It is generally considered to be more
serious than slander because of the permanent record made
and the greater circulation usually afforded the libelous
statements.
Examples of possible libelous statements often
appear ii reports. A casual examination of one issue
-- the European Section of the- report for Thursday, STATINTL
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28 October 19+8 -- yields several possible examples.
n64 -ttempt,-- - been- made.-. co - s k -en these- statements- --fiar_
truth which -would be---a de'e_, to. the--publicatit,. they are
cited as concrete examples of that type of libel mentioned
above, publication of which is libelous per se, and would
be actionable if the victims should ever attempt to bring
suit.
On page AA,8, Premier Ashida was characterized
as follows :
"Ashida added to his glory as incarcerator of the
Japanese people the glory of thieving Premier."
"stealing from the Nation."
On page AA 9, Premier Yoshida is reported in
the press to have -
"received some time ago a large bribe from the
mine owners so that his party should hinder the
establishment of State control over the mines.
And so the place of the bribe-receiving Democrat,
the agent of instilling the pattern of Western
European 'democracy,' has been taken by the
usurious Liberal."
On pagEJEE 4 and 5 is the text of a broadcast
charging a councilor of the Y 'ugoslav Legation in Budapest
with mismanaging the financial affairs of the Legation. The
text goes on to state -
"Upon leaving the Legation, Brankov stole 30,000
forints and 500 dollars and took away with him two
Legation automobiles. His accomplices in this
theft were an employee of the military mission,
Vidovic, and an employee of ~~TANYUG's office in
Budapest, Ozren Krstonosic.
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Page JJ 1 describes the findings of an American
engineer named Rawlings regarding raw materials in Denmark's
subsoil as "a fraud". A Danish Minister is quoted as saying
that Denmark and the Danish-American Prospecting Company
"had been the victims of a swindle by Rawlings."
It should be noted in the definition of libel
above that it is a malicious publication. The use of the
word "malice" or "malicious" is a legal fiction and does
not impute motives of ill will with intent to injure; it
is used in a technical sense to denote the absence of law-
ful excuse or the absence of a privileged occasion. Malice
is presumed in libel even though the statement was published
with an honest purpose or belief, or with good faith or
motives, or by accident or inadvertence.
Malice may also be used in the law of libel
as a term involving some intent of the mind or heart,
actuating ill will, spite, wanton disregard, or motive to
injure. Such malice is never presumed, but must be proved.
On the other hand, implied malice, as described above as
presumed to exist from unprivileged publication of defama-
tory words, is actionable per se.
In order to be defamatory, there must be a
publication or communication of defamatory matter to a
third person or persons. Where defamatory matter is re-
published by a person other than the original author, the
author is not responsible thnnafrTh- The republisher, al-
though not res pcnsi?ole fog; the primary publication, is
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liable for the consequences of the subsequent publication
which he makes or participates in making.
A privileged publication or communication
is one made bona fide by a person who has an interest in
the subject matter to one who also has an interest in it.
Privilege is either absolute or qualified.
In order to create liability for defamation,
there must be an unprivileged publication of false and
defamatory matter about another which is actionable in
and of itself.
Absolute privilege is one for which, by
reason of the occasion on which made, no remedy is provided..
or conditional
Qualified privilege is a defamatory publication
on an occasion of privilege without actual malice.
L-Y,.
'tt.d :dam, rf: to 6,:-~y
in which it is exercised goes beyond what the occasion
dema ..i. Unnecessary defamation, which goes beyond the
requirements of duty, even though acting in good faith,
may not claim duty as a defense. Under such conditions,
the privilege may be lost.
In communications between executive officers,
statements relevant to matters within their scope of duty
are absolutely privileged.
All relevant statements contained in a corrmun.i-
cation made by an executive officer with reference to
matters committed by law to his control or supervision,
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and directed to the particular person or persons specially
interested in such matters. are within the protection of
A report b an officer to his superior made
in due course of duty,, in luding everything therein perti-
nent to the matter report is absolutely privileged.
The absolute privilege which protects an
executive officer in resp ct of statements made in line
of duty or which have mor or less connection with the
general matters committe by law to his control or super-
vision extends to statem nts issued for publication and
published in the press, ere the press is reasonably
dmployed..-as a means of ringing the statements to the
attention of the perso s specially interested in them.
It is fa r to conclude, however, that the
unnecessary use of a public press for an official com-
munication, and t resultant publication of damaging
statements to persons not having such an interest
as justifies a communication to them, would be regarded
as beyond he protection of the officer's absolute privi-
absolute privileZe.
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The Supreme Court of the United States has determined
Spalding v. Vilas, 161 U.S. 483 (1896)) that heads of Executive
Departments have immunity from civil suits for damages from
acts done by them -
"when engaged in the discharge of duties imposed
upon them by law."
A distinction is drawn -
"between action taken by the head of a Depart-
ment in reference to matters which are mani-
festly or palpably beyond his authority, and
action having more or less connection with the
general matters committed by law to his control
or supervision."
In this case, which was an action in defamation against the
Postmaster General over a circular distributed by the Third
Assistant Postmaster General at the direction of the Postmaster
General, the Supreme Court, speaking through Mr. Justice Harlan,
laid down the rule that:
"Whatever difficulty may arise in applying these
principles to particular cases, in which the
rights of the citizen may have been materially
impaired by the inconsiderate or wrongful action
of the head of a Department, it is clear -- and
the present case requires nothing more to be
determined -- that he cannot be held liable to
a civil suit for damages on account of official
corm nications made by him pursuant to an act
of Congress, and in respect of matters within
his authority, by reason of any personal motive
that might be alleged to have prompted his action;
for, personal motives cannot be imputed to duly
authorized official conduct. In exercising the
functions of his office, the head of an Executive
Department, keeping within the limits of his
authority, should not be under an apprehension
that the motives that control his official conduct
may, at any time, become the subject of inquiry
in a civil suit for damages. It would seriously
cripple the proper and effective administration
of public affairs as entrusted to the executive
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branch of the government, if he were subjected
to any such restraint. He may have legal authority
to act, but he may have such large discretion in
the premises that it will not always be his
absolute duty to exercise the authority with
which he is invested. But if he acts, having
authority, his conduct cannot be made the founda-
tion of a suit against him personally for damages,
even if the circumstances show that he is not
disagreeably impressed by the fact that his
action injuriously affects the claims of particular
individuals." (At pages 498-499).
The ruling in the Vilas case that a departmental head
is absolutely privileged from liability for defamatory state-
ments made "more or less in connection with the general matters
committed by law to his control or supervision" was further
approved in the case of Glass v. Ickes, 117 F.(2d) 273 (C.A.
D.C., 1940) cert. den. 311 U.S. 718. This was a defamation
action against Harold Ickes, the Secretary of the Interior,
based on an allegedly libelous press release issued by Mr.
Ickes, in which he made a general announcement that Glass,
a former employee of the Department, was barred by Department
regulations from practicing before agencies charged with the
enforcement of the Connally Hot Oil Act, and explaining the
regulation's purpose and its application to Glass.
The question before the Court was whether Ickes'
communication was privileged to the extent that it could not
be the subject of an action for libel. Glass contended that
this privilege applied only to communications between govern-
mental officials and not to those from an official to the
general public. Speaking for the Court, Judge Vinson stated:
"It may be that there are circumstances under
which an official would exceed his prerogative
in issuing a particular communication to the
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press. There are clearly other circumstances,
however, when a department head may properly
issue public statements in his official capacity.
The question to be answered when an action for
libel is brought on the basis of such a communica-
tion is simply whether the executive officer was
within his official prerogative or duty in issuing
it. More broadly -- was the public communication
'official' in character?" (At pages 277-278).
After consideration of this question, the Court rules
that to communicate information respecting Glass' capacity to
the indefinitely large group of persons with rights subject
to the Hot Oil Act was a proper announcement, if not essential.
In a concurring opinion, however, Chief Judge Groner
points a limiting word of warning:
"Thy necessity of the --rule -is obvious-, but its
cloak of absolute immunity offers such far
reaching opportunity for oppression, that it
manifestly ought not to be extended beyond the
impulse that gave it being. . . .we may have
extended the rule beyond the reasons out of
which it grew and thus unwittingly created a
privilege so extensive as to be almost unlimited
and altogether subversive of the fundamental
principle that no man in this country is so high
that he is above the law." (At pages 281-282).
See also: Mellon v. Brewer, 18 F.(2d) 168, (C.A.
D.C., 1927) cert. den. 275 U.S. 530, where a libel action was
brought against Secretary of the Treasury Mellon on the basis
of a letter written by the Secretary to the President and re-
leased to the press. The Secretary's absolute privilege was
upheld.
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The absolute privilege granted to the heads of
Executive Departments has-been extended to subordinate
departmental officials.
In the leading case of De Arnaud v. Ainsworth, 24
Appl. D.C., 167 (1904), the plaintiff sued over an alleged
defamatory report regarding plaintiff rendered to the
Secretary of War by the defendant, a colonel who was Chief
of the Record and Pension Office of the War Department.
The action was brought against Ainsworth in his
private, individual character and without reference to his
official duties or positions. The Court stated in this
connection that:
". . this can make no difference so far as
his right of defense. is concerned. It is suf-
ficiently shown, in fact conceded, that the
defendant was a colonel in the regular army, and
was duly appointed to and held the position of
chief of the record and pension office, and that
it was in that character that he made the report
to the Secretary of war of which complaint is
made." (At page 176).
The Court took the position that as Colonel Ainsworth
was the duly appointed official to make the investigation
and report to the Secretary for action of the President -
it the same reason applies for the privilege
of the report that would apply if the investiga-
tion and report had been made by the Secretary in
person. . . .
"The question of motive, or whether there
was a want of good faith on the part of the
defendant, in making of the report, is not a
material question in the case. A party is not
liable for the motives with which he discharges
an official duty; nor is he liable for any mis-
take of fact he may commit in the course of the
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exercise of that duty. Public policy affords
absolute protection and immunity for what may be
said or written by an officer in his official
report or communication to a superior, when such
report or communication is made in the course and
discharge of official duty. Otherwise the perfect
freedom which ought to exist in discharge of
public duty might be seriously restrained, and often
to the detriment of the public service. Of course,
when a party steps aside from duty and introduces
into his report or communication defamatory matter
wholly irrelevant and foreign to the subject of
inquiry, a different question is presented. . . ."
(At pages 177 and 178).
The Court further stated that -
"There is no reasonable foundation for the
contention that, because the defendant was not
at the head of the War department, therefore his
report was not entitled to the privilege that would
attach to a similar report made by the Secretary of
war.
It
. . And, as it is impossible for a single indi-
vidual to perform in person all the various duties
assigned to the particular department of which
he is head, he must of necessity, under proper
orders and regulations, perform the larger portion
k of such duties through the agencies of the heads
of bureaus and divisions of his department. But the
work when done is, in contemplation of law, the
work of the department, and is entitled to all the
privilege and protection that would attach to it
if done by the Secretary in person. It is, there-
fore, not the particular position of the party
making the report or communication that entitles
it to absolute privilege so much as the occasion
of making it, and the reasons of public policy
for the immunity." (At pages 180 and 181).
See also: Farr v. Valentine, 38 App. D.C. 413 (1912).
Similarly, in the case of United States, to Use of
Parravicino v. Brunswick, 69 F.(2d) 383 (C.A. D.C., 193+),
suit was brought by plaintiff, as importer in the Barbados,
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in the name of the United States against Brunswick, the
American Consul in the Barbados, and his surety alleging
violation of the Consul's duty to make truthful, accurate
and impartial reports to the State Department. Plaintiff
alleged that Brunswick's report had been defamatory as to
plaintiff's reputation and credit. It was further alleged
that the State Department transmitted the report to the
Commerce Department, which in turn disseminated it among
various American business concerns. The report was trans-
mitted to the Secretary of State for lawful governmental
purposes. Under such conditions, the Court held that
the Consul enjoyed an absolute privilege and could not be
made to answer in an action for libel based upon his report.
On the authority of De Arnaud v. Ainsworth, supra,
plaintiff's contention was rejected that absolute privilege
is granted only to the chief officers of the government and not
to declarations of subordinates.
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A further case is that of Cooper v. O'Connor,
99 F.(2d) 135 (C.A. D.C., 1938), a suit for malicious
prosecution brought against the Comptroller of the Cur-
rency of the United States, his deputies and certain
members of the general counsel's staff of the Treasury
Department. They were sued individually and not as
officers and employees of the United States. The plain-
tiff contended that when public officers act outside the
scope of their authority, or in a wanton, malicious,
and unlawful manner, they are liable in damages. In
denying this contention, the Court stated that the
immunity rule would apply whether the defendants were
accused severally, jointly, or in terms of a conspiracy,
so long as each was proceeding within the scope of
official duties.
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Weat
The Court pointed out that -
if the act complained of was done within
the scope of the officer's duties as defined
by law, the policy of the law is that he shall
not be subjected to the harrassment of civil
litigation
or be liable for civil damages because of a
mistake of fact occurring in the exercise of
his judgment or discretion, or because of an
erroneous construction and application of the
law." (At page 138).
The Court stated further '
"It is not necessary -- in order that acts may
be done within the scope of official authority --
that they should be prescribed by statute . . .;
or even that they should be specifically da
directed or requested by a superior officer.
. .It is sufficient if they are done by an
officer 'in relation to matters committed by
law to his control or supervision! . . .; or
that they have 'more or less connection with
the general matters committed by law to his
control or supervision'. . .; or that they are
governed by a lawful requirement of the depart-
ment under whose authority the officer is acting."
(At page 139).
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. . But, although the courts were reluctant to recognize
and extend the exception, it is now generally recognized
that, as applied to some officers at least, even the absence
of probable cause and the presence of malice or other bad
motive are not sufficient to impose liability upon such an
officer who acts within the general scope of his authority.
. Hence, the officer is entitled to the protection which
the law ?sxx~ throws about him, not because the law is con-
cerned with his personal amity but because such immunity
tends to insure zealous and fearless administration of the
law." (At page 140).
"But whatever these considerations may indicate as
to the wisdom of legislative limitation, the rule as now
declared in many cases has been applied, not only to
officials judicial and quasi-judicial, but to executive
officers generally, such as the Postmaster General, the
Secretary and Assistant Secretary of the Treasury, Members
of the United States Parole Board, the Parole Executive
the Warden of a Federal penitentiary, the Director of tie
Bureau of Prisons, the Commissioners of the District of
Columbia, the Chairman of the Tariff Commission, a
building inspector, the United States Commissioner of Indian
Affairs, and the Chief of Record and Pension Office of the
War Department.
"The reason now given for the rule is simply one of
public policy." (At page 141).
"Appellant seeks to avoid the effect of this wide-
spread extension of the rule by pointing out that in some
of the cases the rule of immunity -- as applied to executive
officers -- was limited to heads of departments. . . .
During recent years, however, a trend is definitely observable
extending the application of the rule to minor executive
officers. It is obvious that the effect of this trend is
to cut down proportionately the scope of the general rule
which makes officials liable for tortious injuries and which
denies to them the immunity of the sovereign. It may be
argued that if this trend is allowed to prevail, it will too
greatly imperil the rights of the individual citizen. Just as
it is the 'hard-boiled top-sergeant' who -- in his interpre-
tation of the orders of the high command -- makes life
miserable for the private in the rear rank so it is the
comparable minor official who -- in civil life -- is largely
responsible for long-existing impressions in the minds of
private citizens concerning 'the insolence of office.'
"On the other hand, to hold that only the heads of
departments should be immune from liability under the rule would
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defeat its purpose. We know that heads of the Federal depart-
ments do not themselves engage in such activities as are
here involved. Their administrative duties make such parti-
cipation impossible. There must be, necessarily, delegation
of authority for such purposes. When the act done occurs
in the course of official duty of the person duly appointed and
required to act, it is the official action of the department;
and the same reason for immunity applies as if it had been
performed by the superior officer himself. . . To hold
otherwise would disrupt the government's work in every
department. Its head can intelligently act only through
subordinates.' . . . The fact that our country has grown
so great as to require a multiplication of governmental
officials in some small measure proportionate thereto, can-
not obscure the fact that the duties performed are the same
as those once performed by heads of departments, and that
fearless performance of official duty is as essential today
as it was yesterday.
"Therefore, we conclude that as the acts of appellees
were performed in the discharge of their official duties,
the motives with which those duties were performed are
immaterial, and appellant's contention must fail." (At
page 142).
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See also: Laughlin v. Roseman, 163 F.(2d)
838 (C.A. D.C., 1947) where the Court stated that:
"The application of the rule of immunity
cannot be avoided by the allegation of
the plaintiff that the defendants are
sued in their personal capacities."
The rule of absolute privilege as to heads of
departments was extended on the authority of the De Arnaud,
Farr, and Brunswick cases so as to reach and include subordi-
nate government officials in the case of Harwood v. McMurtry,
22 F. Supp. 572 (D.C., W.D. Ky. 1938). The Court ruled that
the rule -
". has been further extended so as to
reach and include subordinate government
officers when engaged in the discharge of
duties imposed upon them by law. g The
seriousness of affording such protection,
under the cover of which officers of the
Government, under the guise of official
duty, may make a false and malicious state-
ment subjecting another to scorn and ridi-
cule with ensuing damages, without the
injured party being able to secure legal
redress, cannot be doubted. These con-
siderations., however, are held to be out-
weighed by an imperative public policy that
perfect freedom in the discharge of public
duty is essential to the maintenance of
efficient public service and must be pre-
served without restraint." (At page 572).
However the Court points out that absolute
privilege may be lost when the officer departs from official
duty and indulges in irrelevant defamatory statements. The
Court stated:
"It is clearly pointed out that when an
officer departs from official duty and
indulges in defamatory statements, wholly
irrelevant and foreign to its scope, he
is not entitled to protection, but other-
wise he is afforded absolute _ mmm pity.
Improper motive, bad faith, or false
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statement of facts are not material questions
for the reason that no liability arises on
account thereof when involved in the exercise
of official duty. . . .It is sufficient to say
that the question appears to have been settled
by the Supreme Court, and we are bound by the
decision.' (At pages 572 and 573).
In Block v. Sassman, 26 F. Supp. 105 (D.C., D. Minn,
1939) plaintiff sued some administrative personnel of WNPA,
charging defamation through falsely making an employment
record of the plaintiff setting forth that she was quarrel-
some and mentally incompetent, by reason of which she was
ineligible to work on WTA projects. The Court pointed out
that:
"The very matter under consideration -- the
development of the employment record of the
plaintiff -- comprehends the exercise of the
judgment and discretion of these defendants,
who were in charge of the employment record
of all employees. Officers in the status of
these defendants should not be under any
apprehension that the motives which control
their actions may at some time subject them
to a suit for damages. Such apprehension
would seriously interfere with a fearless and
effective administration of the office. . .
"False and malicious statements made under
the guise of official duty are condemned, but
on the other hand, public policy and the public
good require that official duties be performed
without restraint, and that the motives under-
lying the performance of such official duties in
matters of the kind under consideration should
not be inquired into in a proceeding in a court
of law. . . ." (At pages 106 and 107).
The Court dismissed the plaintiff's complaint.
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Colpoys v. Gates, 118 F.(2d) 10 (U.S.C.A., D. C. 1941)
This was an act for libel by certain Deputy United
States Marshals against the United States Marshal for pub-
lishing in the press statements explanatory of his dismissal
of certain deputies. The case arose from the denial of the
lower court of defendant's motion to dismiss the complaint
on the grounds that the statements were privileged. The
Court pointed out that United States marshals were neither
cabinet officers nor were they policy-making officials.
It was Colpoys' duty to investigate charges if any were
made against his deputies. The Court stated:
". It was not his duty publicly to discuss
the dismissal or publicly to explain the reasons
for it. He had no duty to tell the public any-
thing about them, unless possibly the bare fact
that they were no longer on his staff. In the
cases which have extended an absolute privilege
to administrative officers without policy-determining
functions, the thing held to be privileged has
usually if not always been an act in the general
line of duty, not a separate discussion or explana-
tion. . . . duty,.,
previous cases which established the rule
for privilege, the majority of which have been discussed
in this memorandum, the Court stated:
". . Whether or not any of these cases went too
far, we think they went far enough. Improbable
as the present complaints may be, they charge
appellant with knowingly broadcasting false state-
ments about his former deputies for the purpose
of injuring them. We agree with the District
Court that such conduct by such an officer is not
privileged." ,N , Ix l 1,
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