The opinion of the court was delivered by: GASCH
This matter is before the Court upon defendants' motion for reconsideration and renewed motion for summary judgment. Since the denial of summary judgment on July 30, 1987, 670 F. Supp. 38, it has come to light that a SAFAIR plane - leased by Southern Air Transport Co. and with plaintiff's president on board - flew weapons from the Contra supply depot at Ilopango, El Salvador, to the Contra supply depot at Aguacate, Honduras, on February 20, 1986. According to defendants, the revelation of this fact cuts the heart out of plaintiff's libel case. Plaintiff contends that the revelation is irrelevant to the innuendo that it was in cahoots with the "reviled" South African government and performing illegal operations on behalf of the Central Intelligence Agency ("CIA"). Southern Air Transport, Inc., now states that it has never contested that it assisted the Contras, that it leased planes from SAFAIR or that it delivered weapons to the Contras.
It does dispute the implication that it "deliberately employed SAFAIR planes to supply weapons to the Contras pursuant to an agreement between the U.S. and South Africa for South Africa to assist the Contras." Plaintiff's Memorandum of November 9, 1987, at 9.
This libel suit was filed on March 9, 1987, in response to broadcasts by the American Broadcasting Company ("ABC") on February 25 and 26, 1987. ABC broadcast on its evening and morning news programs an investigative news report describing the efforts of the United States government to enlist the assistance of the government of South Africa to aid the Nicaraguan Contras by supplying aircraft and flight crews. The story was entitled the "South Africa Connection." An investigative reporter for ABC, Karen Burnes, a codefendant in this case, reported that Southern Air Transport Co. leased aircraft from SAFAIR Freighter, a South African company alleged to be involved in covert operations on behalf of the South African government. More detailed facts of this case are set forth in the Court's July 30, 1987, memorandum. Plaintiff sued for libel and for being placed before the public in a false light. The false light claims were dismissed by the Court on July 30, 1987.
At the same time, the Court denied defendants' motion for summary judgment. The defendants had based that motion on the doctrine of substantial truth, but cited limited support for the doctrine in the District of Columbia Circuit. It was the defendants' position that the only material fact in dispute was whether SAFAIR planes or Southern Air planes were used to fly weapons to the Contras. By viewing the inferences drawn from the underlying facts in the light most favorable to Southern Air, the Court noted that there was a substantial difference between economic dealings between Southern Air Transport and a South African corporation and the innuendo that plaintiff was in partnership with the government of South Africa. The Court concluded, "The Court is unwilling to hold, as a matter of law, that such an inference is unreasonable or could not lead to a finding of defamatory meaning."
Additionally, the Court found more than one material fact in dispute. The first disputed fact surrounds plaintiff's contention that SAFAIR opened an office in the United States in 1975, as opposed to 1983, as the ABC broadcast had related. If plaintiff were correct, that fact would weaken the link that defendants' broadcast emphasized between a CIA official's secret trip to South Africa and the establishment of SAFAIR in the United States. Another disputed fact previously noted by the Court is the plaintiff's claim that its agreement to lease planes from SAFAIR was consummated in 1982, prior to that secret trip to South Africa. Additionally, because the Court could not say, as a matter of law, that a jury would not find that the broadcast implied Southern Air was involved with an illegal operation, summary judgment was not granted.
The basis of defendants' supplemental memorandum was the admission by Southern Air that at least one plane that was leased from SAFAIR was used to fly weapons to the Contras. On February 20, 1986, an aircraft leased by plaintiff from SAFAIR delivered weapons to the Contras at a Honduras air station. The weapons were moved from Ilopango, El Salvador, to Aguacate, Honduras. Because Southern Air can no longer allege that "the false and defamatory statement that Southern Air used SAFAIR planes to fly weapons to the Contras was known by Burnes and ABC to be false prior to the time of the broadcast," Complaint at paras. 9, 13, defendants have renewed their motion for summary judgment. Not only have defendants renewed their motion, but they have moved for sanctions under Rule 11. The defendants base their Rule 11 motion on grounds that Southern Air filed this action claiming that a statement about its own operations was false when it knew or should have known it was true.
The thrust of the complaint in this case is that ABC and Karen Burnes published statements known to be false concerning Southern Air and news reports on February 25 and 26, 1987. Plaintiffs previously claimed that the statement that SAFAIR planes were used by Southern Air to fly weapons to the Contras was central to defendants' reports and was known by defendants to be a lie at the time of the reports. Although the Court, in July, rejected defendants' argument that the reports were incapable of defamatory meaning, the Court concluded that there is a substantial difference between "whether SAFAIR planes or Southern Air planes were used to fly weapons to the Contras," stating that if a SAFAIR plane was deliberately employed to supply weapons to the Contras, then a reasonable inference is that Southern Air played a role in deploying the South African plane. The possibility of a false innuendo that the plaintiff was in partnership with the government of South Africa arises only if the statement as to the use of SAFAIR planes is false.
Defendants contend that every statement remotely capable of defaming Southern Air is true. It is undisputed that Safair Freights (USA), Inc., SAFAIR's American subsidiary, was incorporated in New Jersey on August 12, 1983. Similarly, it is undisputed that on August 12, 1983, Southern Air leased two Hercules L-100 aircraft from SAFAIR. With the most recent revelation, it is undisputed that a SAFAIR plane was used by Southern Air to fly weapons to the Contras.
Defendants also assert that the defamatory implication urged by Southern Air cannot fairly be read into the reports and, in any event, is not actionable. Southern Air claims that the reports on ABC News create the impression that Southern Air knowingly and actively participated in a scheme between the United States and the South Africa government. But as defendants assert, there is no language in the reports suggesting intent, willfulness or knowledge on Southern Air's part.