The opinion of the court was delivered by: GESELL
This is a libel case arising from a review published in Publishers Weekly of a book written by the plaintiff, How to Fight City Hall . . . And the IRS, Banks, Corporations, Your Local Airport and Other Nuisances (Contemporary Books, Inc., Chicago 1983). The case is before the Court on defendants' motion for summary judgment, which has been fully briefed by the parties.
The review at issue here was published in the September 9, 1983 issue of Publishers Weekly, a trade magazine published by the defendant Xerox Corporation. The text of the review is short and is set out in full here:
This is a potentially dangerous book. The author imparts a little knowledge about fighting a variety of institutions, from City Hall to the IRS to one's landlord. Unfortunately, neither the institutions discussed nor the methods of achieving redress can be covered in any more than cursory fashion in a single book, yet readers are encouraged to sally forth and do battle knowing only half the facts, strategies and defenses they are likely to encounter. Worse yet, Joseph (who is an attorney) makes serious mistakes in attempting to paint with such a broad brush, including some erroneous statements of what the law is. Perhaps the most valuable parts of the book are the lists of government agencies, consumer and activist groups from which one can seek advice. The author's goal of helping the individual right formerly unredressed grievances is salutary, but his execution falls far short of that goal.
Donn A. Randall, a New York lawyer who regularly contributes to Publishers Weekly, wrote the review, for which he was paid $20.
Joseph wrote to the R.R. Bowker Co.
on September 16, 1983 demanding to know what "erroneous statements of . . . the law" he had made in the book as alleged in the review. His letter was received on September 28 and was answered on October 6. The answer included a five-page memorandum from Randall, including case and statute citations, listing what he regarded as some of the book's errors. Joseph responded on October 11 with a demand for a retraction and free advertising to minimize the harm to his reputation and book sales. Xerox refused but offered to print a letter to the editor from Joseph replying to the review. This action followed.
Joseph claims that the review has damaged his reputation as a lawyer and a writer. He alleges that the book is not in fact potentially dangerous and that it contained no significant errors of fact or law, and that the review was published maliciously and in reckless disregard of the truth.
On this motion for summary judgment, defendants contend that the review is not capable of a defamatory meaning, that it is not false, that the statements therein are privileged as fair comment, and that plaintiff is a public figure and is unable to prove actual malice.
The Court's first task is to determine whether the book review is capable of a defamatory meaning. In the District of Columbia, a statement is defamatory "if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community." Olinger v. American Savings & Loan Ass'n, 133 U.S. App. D.C. 107, 409 F.2d 142, 144 (D.C. Cir. 1969) (quoting Afro-American Publishing Co. v. Jaffe, 125 U.S. App. D.C. 70, 366 F.2d 649, 654 (D.C. Cir. 1966)). A court's power to hold as a matter of law that a statement is not capable of a defamatory meaning is limited to those cases where it is beyond doubt that a reasonable juror could find no defamatory meaning in the published statement. McBride v. Merrell Dow & Pharmaceuticals Inc., 230 U.S. App. D.C. 403, 717 F.2d 1460, 1465 (D.C. Cir. 1983). Given this standard, the Court is unable to find that the book review is incapable of supporting a defamatory meaning. A reasonable reader could conclude, reading the review as a whole, that the plaintiff lacks competence at both lawyering and writing.
But even if a publication is found to be potentially defamatory, a plaintiff who is a public figure has a significantly more demanding burden of proof than a private plaintiff. A public figure plaintiff must prove both that the publication is false,
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975), and that the defendants published it in knowing or reckless disregard as to its falsity, that is, "with [a] high degree of awareness of [its] probable falsity." Garrison v. Louisiana, 379 U.S. 64, 74, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964). The Supreme Court recently reemphasized that this is a heavy burden for public figure libel plaintiffs. They must "demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement." Bose Corp. v. Consumers Union of United States, 466 U.S. 485, n.30, 104 S. Ct. 1949, 1965, 80 L. Ed. 2d 502 (1984).
Any inquiry into a libel plaintiff's status as a public figure must begin with Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), where the Supreme Court found two types of public figures:
For the most part those who attain this status [as public figures] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to ...