Defendants' own affidavits and supporting exhibits show, to the contrary, that Jaroslovsky spent three months intermittently researching the story, reviewed several Liberty Lobby documents and articles about Liberty Lobby, and showed the material he collected to his immediate supervisor and editor, convincing them of the verity of Liberty Lobby's anti-Semitism. Finally, The Journal's Washington bureau chief reviewed the article and, being familiar with Liberty Lobby's radio program and The Spotlight, believed the characterization of the organization to be accurate.
Liberty Lobby has presented absolutely no evidence, by way of affidavit or otherwise, from which it could be found that Jaroslovsky and his editors knew that Liberty Lobby was not anti-Semitic, or that they acted with reckless disregard for the truth of the matter.
This past April, in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, , 54 U.S.L.W. 4373, 4375, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986), the Supreme Court held that, in cases such as this, the First Amendment requires that the burden of proof of the falsity of an allegedly libelous article be placed on a plaintiff who sues a media defendant for defamation.
Two months later, in cases decided the same day, the Supreme Court held that a defendant in any case is entitled to summary judgment if the evidentiary record before the trial court, following discovery, demonstrates that the plaintiff will be unable to prove an essential element of his prima facie case at trial. Celotex Corp. v. Catrett, 477 U.S. 317, , 54 U.S.L.W. 4775, 4777, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). At the same time it applied that principle in the context of a libel case to hold summary judgment warranted for a media defendant where the plaintiff is without evidence to satisfy a reasonable jury clearly and convincingly that the defamation had been committed with actual malice. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, , 54 U.S.L.W. 4755, 4759, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Applying the rules of those three cases to the circumstances presented by this one, it appears that Liberty Lobby bears the burden of persuasion of both the falsity of the imputation of anti-Semitism (by, presumably, a preponderance of the evidence), and the actual malice with which it was made, by clear and convincing evidence. Were the case in this posture at the close of all the evidence at trial, and the motion before the Court one for a directed verdict - the standards being the same, Anderson, 54 U.S.L.W. at 4758; Celotex, 54 U.S.L.W. at 4777 (citation omitted) - the Court would be obliged to take the case from the jury.
No reasonable jury could find on this record that Liberty Lobby has proved prima facie that it is not anti-Semitic, nor could such a jury find that Jaroslovsky and The Journal said that it was with actual malice, there being no evidence of it at all, much less proof that is clear and convincing.
Liberty Lobby's "second cause of action" in Count II, based on the paragraph of Garment's column which merely reports that Liberty Lobby had sued The Journal for calling it anti-Semitic in the Jaroslovsky article, thereby "repeating" the libel, is, of course, extinguished by the demise of Count I. Even were it not, however, Liberty Lobby's argument (no contention being made that Garment incorrectly described its claim) succumbs to the absolute privilege accorded fair and accurate accounts of official reports and records. See Dowd v. Calabrese, 589 F. Supp. 1206, 1217 (D.D.C. 1984); Restatement (Second) of Torts, § 611 (1977).
The gravamen of Liberty Lobby's third through fifth "causes of action" is that the Garment column "was biased, untruthful, and unfair. . . [and] that her relationship with The National Review led to her decision to report upon the opening statements[,] and that her dislike and contempt for . . . Liberty Lobby was buttressed only by her own abysmal ignorance of the law and the facts." Plaintiff's Opposition to Defendants' Motion for Summary Judgment, at 17-18. On deposition Garment acknowledged that she attended and wrote about The National Review trial at the suggestion of counsel for the magazine. Her deposition further shows her to be a non-lawyer without any special knowledge of libel law.
All that aside, however, the three disputed passages are simply descriptions of Garment's personal reactions to Liberty Lobby's attorney's opening statement, nothing more. Assuming, for the sake of argument alone, that Garment's account was fanciful, hyperbolic, vindictive, biased, legally mistaken, or all of the above, the First Amendment does not recognize either objective or subjective qualifications for voicing opinions without incurring liability. And these three passages are clearly protected opinion under Ollman. See 750 F.2d at 979.
First, the offending portions of all three passages contain statements as to which there can be no clear consensus as to meaning; they depend entirely upon the eye of the beholder and evoke no universal understanding. Second, few, if any, of these statements are objectively verifiable. Third, although written in the first and second person plural, the tenor of Garment's commentary is one of her own subjective impression of Lane's forensic demeanor and not an assertion that others have actually seen it as did she. And fourth, while it may not be conclusive, the placement of a column on a newspaper's editorial page - which is where Garment's column appeared - is some evidence that it was deemed by her editors to be opinion as well. See Ollman, 750 F.2d at 986-87.
For the foregoing reasons, therefore, it is, this 10th day of July, 1986,
ORDERED, that defendants' motions for summary judgment and judgment on the pleadings are granted, and the complaint is dismissed with prejudice.