The opinion of the court was delivered by: FLANNERY
This matter comes before the court on defendants' motions for summary judgment. This is an action to recover damages for, inter alia, defamation and invasion of privacy. There are two sets of defendants in this case: (1) The Washington Post Company and one of the Post's reporters -- Leon D. Dash, Jr.; and (2) the District of Columbia, Dr. Fred R. West, Administrator of the Narcotics Treatment Administration (NTA), and Albert P. Russo, Acting Director of the Department of Human Resources.
The plaintiff, George B. Logan, aka George B. Jackson, was arrested by Metropolitan Police in the aftermath of an undercover fencing operation which has become commonly known as "the Sting". Logan bases his causes of actions on articles appearing in the Washington Post on March 17 and 18, 1976. Logan received particular attention in those articles because he had applied to be a "hit man" for the undercover operation and because he allegedly confessed to a murder in order to impress the undercover agents who were posing as members of the Mafia.
On March 16, 1976 Dr. West was interviewed by Dash, the Post reporter, concerning the use of illicit drugs by persons who had been arrested in connection with the Sting. On March 17, 1976, the Post published an article written by Dash which reported that "of the 62 (defendants tested) 24 or 39 percent of them had heroin (in their urine samples), methadone, cocaine or admitted to the use of drugs." The article stated that "fourteen of the drug users were active or inactive NTA patients". The article also reported that George Logan "was one of the eight of the agency's patients who were inactive in the program and showed positive use of drugs in his urine sample". The information reported about Logan's drug use and status with the NTA was based on Dash's interview of Dr. West.
After the article was published, Dr. West advised Dash that Logan's urine sample had not in fact tested positively as to drug use. On March 18, 1976 the Post published a "correction" stating that Logan "was incorrectly listed as among a group of 24 illicit drug users." The correction went on to report that Dr. West had confirmed, however, that Logan was an inactive NTA patient.
Based on the March 17 article and the March 18 correction Logan has sued the Post and Dash for libel and invasion of privacy and he also asserts claims against the District of Columbia, Russo and Dr. West for violation of the confidentiality provisions of the Drug Abuse Office and Treatment Act of 1972, 21 U.S.C. § 1175, violation of the confidentiality of the physician-patient relationship, defamation and invasion of privacy.
I. Claims against the Post and Dash.
The Washington Post and Dash move for summary judgment on all of the claims against them asserting: (1) that the articles are not actionable in libel and (2) that the articles did not invade the plaintiff's privacy. As to the libel claims, the Post and Dash contend that the allegedly defamatory statements were substantially true, the plaintiff cannot show that the articles caused any injury to his reputation, and that the plaintiff cannot prove that the articles were published with actual malice.
Before pressing their substantive assertions, the Post and Dash initially contended that summary judgment is favored in libel and invasion of privacy cases. They correctly assert that the court should closely scrutinize the evidence to determine whether summary judgment should be granted because of the chilling effect of this case on their First Amendment rights. See Guam Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d 438, 441 (9th Cir.), cert. denied, 419 U.S. 872, 42 L. Ed. 2d 111, 95 S. Ct. 132 (1974); Washington Post Co. v. Keogh, 125 U.S. App. D.C. 32, 365 F.2d 965, 968 (1966), accord, Gospel Spreading Church v. Johnson Publishing Co., 147 U.S. App. D.C. 207, 454 F.2d 1050, 1051 (1971); Thompson v. Evening Star Newspaper Co., 129 U.S. App. D.C. 299, 394 F.2d 774, 776 (1968).
As to the libel claims, the court need not reach the issue of whether the articles were substantially true because it is clear that the plaintiff cannot show that the articles were published with actual malice as required by New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). It is also apparent that the plaintiff cannot demonstrate that the articles caused any injury to his reputation.
In New York Times Co., the Supreme Court held that the First Amendment:
[Requires] we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
376 U.S. at 279-80. This prohibition was extended to preclude recovery by a "public figure" unless actual malice is shown. Gertz v. Robert Welch, Inc., 418 U.S. 323, 336-37, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130, 162-65, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967) (Warren, C.J., concurring); Thompson v. Evening Star Newspaper Co., 129 U.S. App. D.C. 299, 394 F.2d 774, 775-76 (1968). The question then becomes whether the plaintiff in this case is a public figure. The determination as to whether the plaintiff is a public figure is to be made by the court, not a jury. See Rosenblatt v. Baer, 383 U.S. 75, 88, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1966); Hoffman v. Washington Post Co., 433 F. Supp. 600, 604 (D.D.C. 1977); Hotchner v. Castello-Puche, 404 F. Supp. 1041, 1045 (S.D.N.Y. 1975), rev'd on other grounds, 551 F.2d 910 (2nd Cir. 1977).
In discussing public figures, the Supreme Court in Gertz stated:
In some instances, an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.
418 U.S. at 351. In this case, Logan voluntarily injected himself into the Sting controversy and thereby became a public figure. The plaintiff freely entered into the police operation known as the Sting and clearly made himself a public figure by attempting to become a "hit man" and claiming to have been responsible for a murder. Even if all criminal defendants are not public figures for the purpose of a defamation action, see Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 966-67, 47 L. Ed. 2d 154 (1976), Logan certainly is, because he is not the typical criminal defendant. Besides being arrested in connection with a large police fencing operation, Logan gained additional notoriety through his assertions in attempting to secure a "job". Therefore, Logan must establish actual malice by clear and convincing evidence. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974); Rosenbloom v. ...