required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." Id.
"Whether evidence is clear and convincing requires weighing, comparing, testing, and judging it when considered in connection with all the facts and circumstances in evidence" 30 Am. Jur. Evidence Sec. 1167 (1967).
It would appear that in making the editorial decision to write that a relationship existed between Liberty Lobby and the LaRouche organization, that defendants reasonably relied on the above salient representations of facts.
The defendants had before them a panoply of documents some of them Liberty Lobby's, others being national newspapers and magazines. A former U.S. Labor Party Member had described in a National Review article the "intimate ties" between the two organizations. A Liberty Lobby position paper stated that the U.S. Labor Party should qualify as a political ally of Liberty Lobby. The late Congressman Larry McDonald on at least two separate occasions asserted the collaboration of Liberty Lobby and Spotlight with the U.S. Labor Party. The former editor of Spotlight acknowledged that he published favorable articles on the U.S. Labor Party on direct orders from his superiors.
This Court's mandate is to examine all the facts and circumstances in the record before it. The facts in this record could not produce in a reasonable juror's mind firm belief or conviction as to the existence of actual malice. There was a sufficient basis upon which defendant could reasonably infer the existence of a close relationship between Liberty Lobby and the LaRouche organization.
The Court notes that in his Memorandum Opinion of June 10, 1986, on a discovery related issue, Magistrate Arthur Burnett stated that in his view, "the plaintiff has sufficient other evidence suggesting fabrication, or at least reckless disregard of the truth based both on alternative sources and plaintiff's counsel's eliciting responses from both John Rees and Sheila Louise Rees, which as a matter of circumstantial evidence, will support arguments of malice, i.e. knowing falsity or reckless disregard of the truth." Memorandum Opinion 6/10/86 at p.8. The Magistrate added that "it appears that the plaintiff already has substantial evidence to establish knowing falsity or reckless disregard of the truth . . ." Memorandum Opinion at pp. 10-11.
The Magistrate's discovery observations notwithstanding, the Court iterates that its mandate is to examine the entire record before it and to apply a clear and convincing standard. This issue and standard were not before the Magistrate.
There is no clear and convincing evidence in this record that defendants had a "high degree of awareness of . . . probable falsity," Garrison v. Louisiana 379 U.S. 64, 74, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964), or that defendants had "in fact entertained serious doubts as to the truth of (their) publication." St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968). On the contrary, defendants have proffered affirmative evidence tending to show that the articles were published in good faith and without actual malice. The defendants consulted many previously published accounts of plaintiff's anti-semitism, racism and neo-nazism and of plaintiff's relationship with Lyndon LaRouche and his organization.
On August 18, 1986, this Court stated from the bench that the defense of substantial truth was an additional ground for granting defendants' motion for summary judgment as to the allegation of anti-semitism. Upon reconsideration the Court does not enter such a finding. However, the extensive record before Judge Jackson in Liberty Lobby, Inc. v. Dow Jones & Co., 638 F. Supp. 1149 (D.D.C. 1986) led that Court to hold that Liberty Lobby was an anti-semitic organization. Although the record in this case would also support such a finding this Court need only apply to all allegedly defamatory statements the clear and convincing standard of actual malice.
This Court concludes, by applying the test in Anderson, that plaintiff cannot show to a reasonable trier of fact by clear and convincing evidence that defendant published either of its two articles with actual malice - that is, with knowledge of its falsity or with reckless disregard for whether it was false or not.
Accordingly, defendant's Motion for Summary Judgment is GRANTED.