|WISDOM, CIRCUIT JUDGE. This action for damages for libel and slander is based on a false statement relating to Mr. Melvin Belli. Belli, an attorney of national prominence, is well known in the legal profession for his pioneering in the development of demonstrative evidence as a trial tactic and his success in obtaining large judgments for plaintiffs in personal injury suits. He is well known to the general public because of his representation of Jack Ruby and others in the public eye.
In March 1964 Mr. Leon Handley, an attorney in Orlando, Florida, in a conversation with Miss Jean Yothers, a columnist for the Orlando Evening Star, repeated a story he had heard concerning Belli. Handley told Yothers that the Florida Bar Association had invited Belli to serve as a member of one of the panels on the program of the Association at its 1955 Convention in Miami Beach. Belli agreed, with the understanding that ‘‘since there were no funds provided in the budget for payment per se for his contribution as a lawyer to the program the Florida Bar instead would pick up the hotel tab for himself and his wife during their stay.’’ According to Handley, after Mr. and Mrs. Belli left Florida, the Association discovered that the Bellis ‘‘ran up a bunch of [clothing] bills’’ which they charged to their hotel room. The derogatory portion of the story was admittedly false: The Bellis had not charged any purchases to their hotel account. Unfortunately for all,
Jean Yothers reported, with embellishments, this nine-year old story in her gossip column in the Orlando Evening Star for March 19, 1964.2 * * * The district court dismissed Belli’s complaint for failure to state a claim upon which relief could be granted. The court relied on the erroneous
assumption that the determination whether a statement is a libel (or slander) per se is solely for the court. We consider it a close question whether the publication is so clearly defamatory that as a matter of law the case should not be submitted to the jury. We hold, however, that the publication itself, without reference to extrinsic facts, is capable of carrying a defamatory meaning. It is for a jury to determine whether it was so understood by the ‘‘common mind’’. We reverse and remand. * * *
The article appeared in the Orlando Evening Star under the title ‘‘On the Town’’ by Jean Yothers and headed ‘‘Florida Bar Got the Bill’’. The full text is as follows: Jack Ruby’s flamboyant attorney Melvin Belli of San Francisco makes an indelible impression whither he goeth. Consider the time he and Mrs. Belli were in Miami six or so years ago and Belli was a member of a panel at a program-meeting of
the Florida Bar. Here’s what happened: In making arrangements for Belli’s participation it had been pointed out to him that since there were no funds provided in the budget for payment per se for his contribution as a lawyer to the program, the Florida Bar instead would pick up the hotel tab for himself and his wife during their stay. Belli agreed. Oops! A local attorney remembers, with embarrassed chagrin, how the plan backfired on theFlorida Bar. After the well-dressed Mr. Belli and his
well-dressed wife left town, the hotel where they had been staying received clothing bills amounting to hundreds of $s. The Bellis had shopped in Miami stores and charged clothing bills to their hotel rooms. The Florida Bar had been taken. It was hard to stomach but the Board of Governors of the Florida Bar picked up theBellis’ bill. After all, that was the plan!
In Florida and in many states * * * a libel per se is ‘‘any publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy’’. For example, in Briggs v. Brown, 55 Fla. 417, 46 So. 325, 330 (1908) the court states the formula for libels per se as follows: ‘‘A civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise which exposes a person to distrust, hatred, contempt, ridicule, or obloquy * * * or which has a tendency to injure such person in his office, occupation, business, or employment. If the publication is false and not privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his personal, social, official, or business relations or life, wrong and injury are presumed and implied, and such publication is actionable per se.’’ * * *
We find that the general law and Florida law are in agreement with Dean Prosser’s conclusion: ‘‘It is for the court in the first instance to determine whether the words are reasonably capable of a particular interpretation, or whether they are necessarily so; it is then for the jury to say whether they were in fact understood as defamatory. If the language used is open to two meanings * * * it is for the jury to determine whether the defamatory sense was the one conveyed.’’ (Emphasis added.) Prosser, Law of Torts § 106, at 765 (1963). * * *
Both judge and jury play a part in determining whether language constitutes libel. The Supreme Court has delineated these roles in Washington Post Co. v. Chaloner, 1919, 250 U.S. 290:
‘‘A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. * * * When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not. If, upon the other hand, it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read.’’ * * *
The district court in this case completely excised the jury’s role, a position it could take only on the assumption that the publication unambiguously carried no defamatory meaning. Since the court did not spell out its reasons, the defendants in their briefs have attempted to articulate the rationale for the holding below. The defendants argue that the article did not ‘‘hurt’’ Belli as an attorney, did not imply that he was ‘‘losing his touch with demonstrative evidence’’, did not affect his ability to ‘‘obtain those ‘more adequate awards’ for seamen and railroad workers for which he is so justly famous’’. In effect, so the argument runs, the article was nothing more than caustic comment on the acuteness of the Florida Bar Association. Belli simply ‘‘showed the Florida lawyers that their agreement was somewhat more favorable to him tha[n] they—in their naivet´e—contemplated’’. In its harshest sense, they say, ‘‘the article implies no more than that Mr. Belli ‘put one over’ on the Florida Bar’’, which is ‘‘not quite the same as conning a destitute widow out of her homestead’’. In short, Mr. Belli just got ‘‘a little more out of the agreement than the Bar Association contemplated’’.
The defendants make a case—just barely—for the view that the article is capable of being reasonably interpreted as non-defamatory. But since the article on its face is also capable of carrying a defamatory meaning, it is for the jury to decide whether the words were in fact so understood. The plaintiff contends, in his brief, ‘‘No person reading the headline and the article sub judice * * * could conclude other than that Melvin Belli, both as a lawyer and as a private citizen is grasping, conniving, contemptible, dishonest; a cheat, swindler, trickster, deceiver, defrauder; a person to be avoided, shunned and distrusted.’’ Without benefit of the defendants’ cavalier reading of the article or the plaintiff’s retort hyperbolic, we consider that the bare bones of the article are capable of carrying the meaning that Belli tricked and deceived the Florida Bar Association out of hundreds of dollars worth of clothes. * * *
The author’s comment seems intended to insure the common reader’s understanding of what purportedly happened. The common reader is likely to understand ‘‘take’’, just as Miss Yothers must have understood it. A recent dictionary defines it: ‘‘To cheat, deceive’’; other dictionaries agreewith this definition. The man in the street is likely to understand that hotel expenses do not include ‘‘hundreds of dollars worth of clothing’’. But any doubts the reader might have as to what purportedly happened are likely to be resolved by the reference to Belli’s ‘‘plan’’ to ‘‘take’’ the Florida Bar.
We hold that a jury might reasonably conclude that the conduct imputed to Belli was incompatible with the standards of an ethical lawyer and as such violated one of the four traditional categories of libel per se. A jury might also conclude that such conduct subjected Belli to contempt, and ridicule, humiliating him socially and injuring him professionally. The Court has some doubt whether the publication in question carries a non-defamatory meaning. The Court has very little doubt that it carries a defamatory meaning. The Court has concluded however that the final
determination of the issue of defamation should be made by a jury.
The story is nine years old. It was not made within the context of adiscussion of an important public issue. Nevertheless, the delimiting effect of the law of libel on First Amendment rights and a free press impels the Court not to excise the role of the jury. ‘‘Since one’s reputation is the view which others take of him * * * [w]hether an idea injures a person’s reputation depends upon the opinions of those to whom it is published.’’ Developments in the Law: Defamation, 69 Harv.L.Rev. 875, 881–82 (1956).
Thus, because it is impractical, even unreliable, to depend upon in-court testimony of recipients of the particular publication for determining whether that publication is defamatory, a logical function of the jury is to decide whether the plaintiff has been lowered in the esteem of those to whom the
idea was published.
We reverse the dismissal of the district court and remand the case for further proceedings consistent with this opinion.