MEMORANDUM ORDER (March 30, 1983)
BARRINGTON D. PARKER, District Judge.
In support of the motion for summary judgment the defendants have filed and rely primarily on an affidavit of Charles Bermant. They also rely on an affidavit of Winfield Scott Stanley. Bermant authored the articles which are the subject of the libel action.
Liberty Lobby and Willis Carto have moved to strike paragraphs 20, 21, and 22 of Bermant's affidavit and the entire appendices, contending the requirements of Rule 56(e) Fed.R.Civ.P. have not been met. They challenge the entire Stanley affidavit and move to strike it.
For the reasons set out below the motion is denied.
The Bermant Affidavit
The objection to paragraph 20 is that Bermant states in part that he believes that the articles written were truthful and accurate and that the sources were reliable and truthful. Plaintiffs challenge the affidavit asserting that it does not comply with the requirements of Rule 56(e), Fed.R.Civ.P., and that it is inadmissible, citing Jameson v. Jameson, 85 U.S. App. D.C. 176, 176 F.2d 58 (D.C.Cir.1949).* While an affiant's opinion or belief is normally inadmissible, in a libel case statements concerning a defendant's state of mind and belief are admissible because they go to the core of the inquiry. A defendant's state of mind is central to the question of whether he published with actual malice. Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979). The existence of a particular belief or opinion will often determine whether a defendant is liable. Thus, in Herbert v. Lando, a libel action, the plaintiff was permitted to inquire into the state of mind and editorial processes of the defendants. "Conclusions as to the importance and veracity of sources and information presented in the article" were properly included in the record when the existence of malice was controverted. Id. at 160 n. 6, 99 S. Ct. at 1641 n. 6. Bermant's opinions and beliefs as to the veracity of his material were not improper and should not be stricken.
Paragraph 21 recites that Bermant had prepared an appendix to his affidavit detailing the sources relied upon when making the statements that plaintiffs have now challenged. Bermant stated his belief that the sources, including members of Congress, several local Washington newspapers, and the Los Angeles Times, were reliable. The plaintiffs assert that these are Bermant's conclusions and opinions, not based on personal knowledge, and are therefore inadmissible. Plaintiffs' challenge is misplaced. The questioned statements were indeed based upon Bermant's personal knowledge, and he specifically refers to the sources upon which he relied in preparing the publications. He also stated his belief that those sources were dependable and reliable. The type of challenge and objection raised by the plaintiffs in this instance was fully discussed and rejected in Herbert v. Lando, 441 U.S. at 165-166 n. 15, 99 S. Ct. at 1643 n. 15.
For the same reasons plaintiffs' motion to strike paragraph 22 must also be denied. Ironically, the objectionable source in this instance is Imperium, a book authored by F. P. Yockey, the introduction to which was written by the plaintiff Willis Carto and published by Liberty Lobby. This, of course, gives added support to the reasonableness of Bermant's belief in the accuracy and reliability of his sources.
The appendices contain quotations from various sources utilized by Bermant in his articles. They are challenged because they constitute inadmissible hearsay, are not exhibited or quoted in full, but rather are "excerpts taken entirely out of context," and are not authenticated or certified copies.
The argument that the appendices contain inadmissible hearsay under evidence Rule 802 is not convincing. For an out-of-court statement to be hearsay, it must be offered to prove the truth of the matter asserted. But here, the excerpts are not offered to prove the truth of the allegations they contain. Rather, they are submitted without regard to their truth or falsity, only to show Bermant's state of mind and that in relying upon them he lacked malice.
Nor is the argument that defendants have failed to establish a proper foundation and that the appendix materials are not authenticated persuasive. Bermant's affidavit, particularly para. 21, establishes the foundation for the statements contained in the appendix and identifies these materials as his sources for the allegedly defamatory statements. In a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence. First National Bank Co. v. Insurance Co. of North America, 606 F.2d 760, 766 (7th Cir.1979); Schy v. Susquehanna Corp., 419 F.2d 1112, 1116 (7th Cir.), cert. denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970). Further, many of the sources, such as newspapers and periodicals, are self-authenticating under evidence Rule 902(6). Others, such as the excerpts from the declarations made by William Cox, are supported by deposition. While in some situations courts have required that the documents be submitted in full, see, e.g., Walling v. Fairmont Creamery Co., 139 F.2d 318 (8th Cir.1943), the defendants will not be required to submit all sources in their entirety -- many of which are obviously of great length. Moreover, all sources were made available to plaintiffs during the course of discovery, and they have had the opportunity to correct any misleading impressions that might have been created by statements incorrectly quoted or taken out of context.
The Stanley Affidavit
Winfield Scott Stanley, Jr., the editor of two John Birch Society publications, The Review of News and American Opinion, was quoted by Bermant in the articles as being of the opinion that Carto is anti-Semitic. When Liberty Lobby and Carto, in their opposition, challenged the validity of that quotation, defendants submitted with their reply brief the Stanley affidavit. Stanley stated that indeed it was his view that Carto was anti-Semitic and, in addition, racist. Plaintiffs moved to strike the Stanley affidavit, arguing that it was an inadmissible opinion, and, further, that it contradicted Stanley's deposition, where Stanley denied ever making the quoted statements.
Bermant relied upon Stanley's opinions in writing the articles. Consequently, Stanley's opinions can shed light on Bermant's state of mind and on the existence of malice. Anything which can contribute to an understanding of Bermant's state of mind is admissible under Herbert v. Lando. Especially here, where Liberty Lobby and Carto interjected the issue of Stanley's opinions in their opposition to the motion for summary judgment, they will not be permitted to bar the introduction of the Stanley affidavit by way of rebuttal. Any contradiction between Stanley's affidavit and his deposition goes only to the weight to be accorded to it, not its admissibility. See 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2738 at 686 (1973).
ON MOTION FOR SUMMARY JUDGMENT (March 31, 1983)
In this action the defendants, who are engaged in the publishing business, were responsible for publishing statements that the plaintiffs were neo-Nazi, fascist, anti-Semitic, and racist. The plaintiffs' complaint alleges that the statements were false and derogatory, and they seek general and punitive damages. The defendants have moved for summary judgment on the grounds that the plaintiffs are public figures, that there is no evidence of actual malice, and that the plaintiffs are libel-proof.
The parties' memoranda of law, the several affidavits, and the entire record have been considered. The Court determines as a matter of law that the defendants are entitled to summary judgment and that the libel complaint should be dismissed. The reasons for this conclusion are set out in the discussion which follows.
A second count of the complaint charges that in 1966 the defendant Jack Anderson took possession and control of and converted to his use certain property -- files -- of the plaintiffs. This count is also subject to a motion for summary judgment. The motion is likewise granted.
While it is claimed that there are numerous disputed facts in this libel suit, many are of limited, if any, consequence. The material underlying facts necessary for disposition of this motion for summary judgment are uncontested and set out below.
Liberty Lobby is a not-for-profit corporation headquartered in the District of Columbia. Plaintiff Willis A. Carto is its founder, treasurer and its chief lobbyist. Liberty Lobby "is the first citizens' lobby in the United States," with an avowed purpose to advocate and promote "patriotism, nationalism, lawfulness, protection of the national interests of the United States and the economic interests of its citizens, and strict adherence to the United States Constitution and the form of government it establishes."
To disseminate its views, Liberty Lobby publishes a weekly national newspaper, The Spotlight, with more than 335,000 paid subscribers and an even greater number of readers. A daily radio commentary, "This is Liberty Lobby," is carried over 460 stations, and a weekly half-hour television news show is broadcast on 30 stations.
The two articles giving rise to this libel suit were published in the October 1981 issue of The Investigator, a magazine published by defendant Investigator Publishing Company. Defendant Jack Anderson was publisher of the magazine; defendant Bill E. Adkins was the president and chief executive officer of the Investigator Publishing Company. The Investigator has since ceased publication.
The two articles, entitled "The Private World of Willis Carto" and "Yockey: Profile of an American Hitler," were authored by Charles Bermant, an employee of the defendants, and edited by Jack Anderson. The articles were introduced by a section signed by "The Editors": "Did Mein Kampf Spawn Yockey's Imperium, a Book Revived by Carto's Liberty Lobby?" The publications recount the history of Carto and Liberty Lobby, and convey statements expressed by many organizations and individuals describing Carto and Liberty Lobby's views. Without doubt, the plaintiffs are referred to as neo-Nazi, fascist, anti-Semitic and racist. The portrayals form the basis for plaintiffs' libel complaint.
To support their motion for summary judgment, the defendants submitted the affidavit of Charles Bermant.
His affidavit details the investigative means he utilized in his research before writing the articles. He rebuts, point by point, each of the plaintiffs' allegations of libel, and reveals the sources he relied upon in composing each of the allegedly libelous statements. In preparing for the articles, Bermant secured more than 1000 pages of documents from the federal government under the Freedom of Information Act, 5 U.S.C. § 552 et seq. He collected newspaper articles and press clippings published by The Washington Post, The Washington Star, The Los Angeles Times, William Buckley's National Review, True Magazine, and the Anti-Defamation League of B'nai B'rith. Statements by congressmen reported in the Congressional Record were also relied upon. Several examples from the sources uncovered by Bermant are illustrative:
An outspoken anti-Semite who has professed an abiding admiration for Hitler and Nazi Germany and has been the moving force behind a network of Jew-hating organizations and publications over the years is also the unpublicized force behind "This is Liberty Lobby," an extremist radio program carried five times a week by some 126 stations around the country.