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WOLSTON v. READER'S DIGEST ASSN.

January 31, 1977

ILYA WOLSTON, Plaintiff,
v.
READER'S DIGEST ASSOCIATION, INC., doing business as READER's DIGEST PRESS, et al., Defendants



The opinion of the court was delivered by: BRYANT

 In this diversity action the plaintiff, Ilya Wolston, seeks to recover compensatory and punitive damages for allegedly libelous statements about him that appear in the book KGB, The Secret Work of Soviet Agents (" KGB "), authored by defendant John Barron, published by defendant Reader's Digest, offered as a selection by defendants Book-of-the-Month Club and Macmillan Book Clubs, and reprinted in paperback by defendant Bantam Books. The defendants claim that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law, and have moved for summary judgment. Rule 56, Fed. R. Civ. P.; Local Rule 1-9(h). Wolston, Barron, and representatives of each of the other parties have submitted affidavits, plaintiff and defendant Barron have been deposed, and the court has heard oral argument by counsel for both sides.

 The first question the court must consider is what degree of fault would plaintiff be required to demonstrate if this matter were to go to trial. Defendants claim a constitutional privilege with respect to statements they published concerning Wolston. They contend that he qualifies as a "public figure" for purposes of libel law, and they urge the court to adopt the "actual-malice" standard. See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). Alternatively, defendants contend that Wolston became involved in a matter of "public concern" and that, in such a case, the law in the District of Columbia requires application of the actual-malice standard even if the plaintiff does not qualify as a public figure. Hatter v. Evening Star Newspaper Co., Civil No. 8298-75 (Sup. Ct. D.C. March 15, 1976). Wolston sees matters differently. He contends that he is a "private-individual" plaintiff for purposes of a libel suit and observes that, if that is so, the court can impose liability on defendants under any standard short of liability without fault. See generally Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); Time Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976). He suggests that the court adopt either a negligence or gross negligence standard for libel concerning private individuals. He argues that the court is not bound by the decision of the Superior Court of the District of Columbia in Hatter v. Evening Star, supra, and that, in any event, the court should distinguish that decision.

 The second question the court must consider is whether, under the appropriate standard, the pleadings, affidavits, and depositions demonstrate the existence of issues that are inappropriate for summary resolution. In this connection plaintiff disputes defendants' contention that no genuine issues of fact exist. He argues that defendants have failed to establish as a matter of law the nonexistence of fault on each of their parts and that this is so regardless of which standard of fault applies. Therefore, he claims, the court should deny defendants' motion and permit plaintiff to proceed to trial.

 I. FACTUAL BACKGROUND

 In January 1957 Ilya Wolston, a naturalized American citizen residing in the District of Columbia, *fn1" received a subpoena directing him to appear before a special federal grand jury in New York City. The grand jury had been investigating the activities of Soviet intelligence agents in the United States; it summoned Wolston shortly after the Federal Bureau of Investigation arrested his aunt and uncle, Myra and Jack Soble, for espionage. *fn2"

 Wolston traveled to New York on several occasions, but failed to respond to a subpoena requiring him to appear on July 1, 1958. He was charged with criminal contempt, he pleaded guilty, and he was sentenced to one year in prison. The sentence was suspended and Wolston was placed on probation for three years. His failure to appear before the grand jury and his subsequent plea of guilty were mentioned or discussed at the time in some fifteen newspaper stories in New York and Washington, D.C. Deposition of Ilya Wolston at 62-72.

 In 1959 Viking Press, Inc. published the book My Ten Years As A Counterspy, by Boris Morros. A one-time confederate of Jack Soble who later served as an intelligence agent for the F.B.I., Morros in this book identified plaintiff as a Soviet agent in the United States. According to Morros, Soble claimed that an individual who had operated in Germany under the code name "Slava" had supplied him with information valuable to the Soviets. *fn3" Subsequently, Morros says in his book, Soble identified Ilya Wolston as "Slava." *fn4" Morros also states, however, that he knew Soble to be a "confirmed liar" and acknowledges that Soble was his only source of information concerning Wolston. *fn5"

 In a report entitled "Expose [sic] of Soviet Espionage May 1960" the F.B.I. *fn6" reiterated the information that Soble had furnished to Morros and noted that Soble had also described Wolston's intelligence activities to the government. Id. at 26. The report states:

 
"On several occasions beginning May 7, 1950, Jack Soble furnished Boris Morros with information concerning an individual he described as a U.S. Army Colonel in Germany who furnished him information under the code name 'Slava,' which was very valuable to the Soviets. It is noted that from October, 1949, until July, 1951, Wolston was employed by the U.S. High Commissioner of Germany in Berlin. *fn7" In January, 1955, Soble identified his nephew, Ilya Wolston, as 'Slava.' In addition, Jack Soble, pleading guilty in April, 1957, furnished information identifying Wolston as a Soviet agent who provided him information for the Soviets on several occasions beginning when Wolston was in a military camp, about 1943. Soble said Wolston gave him information concerning his assignments and names of four persons at the camp whom he believed could be approached by the Soviets.
 
"Information concerning the probable identification of Wolston as a Soviet agent was furnished to the Department of State in 1951, together with data developed concerning his black market activities in Germany. The Department of State, on the basis of these data, dismissed Wolston from his employment in Berlin." *fn8"

 Id. at 25-27. The report does not indicate that its authors relied exclusively on Soble in identifying Wolston as an agent. On another page it simply lists Wolston's name among people "the F.B.I. investigation resulted in identifying as Soviet intelligence agents." Id. at 24.

 The present action arises from the publication in 1974 of KGB, which summarizes Soviet espionage efforts since World War II. Wolston objects to the following sentence and footnote, which appear on page 188 of the Reader's Digest Press edition:

 
"Among Soviet agents identified in the United States were Elizabeth T. Bentley, Edward Joseph Fitzgerald, William Ludwig Ullman, William Walter Remington, Franklin Victor Reno, Judith Coplan, Harry Gold, David Greenglass, Julius and Ethel Rosenberg, Morton Sobell, William Perl, ...

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