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02/05/88 Liberty Lobby, Inc., v. Dow Jones & Company

February 5, 1988

LIBERTY LOBBY, INC., APPELLANT

v.

DOW JONES & COMPANY, INC., ET AL. 1988.CDC.50 DATE DECIDED: FEBRUARY 5, 1988



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, Civil Action No. 84-03455.

APPELLATE PANEL:

Edwards, Bork, and Williams, Circuit Judges. Opinion for the Court filed by Circuit Judge Bork.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK

This is a libel action in which Liberty Lobby, Inc., a citizens' group, seeks fifty million dollars in compensatory and punitive damages from the publisher of The Wall Street Journal. After more than a year of discovery, the district court granted defendants' motion for summary judgment on the first count, and judgment on the pleadings as to the remaining four counts of Liberty Lobby's complaint. We affirm the district court's disposition of the case in all respects, although we sometimes follow a different route to the same result. I.

On September 28, 1984, The Wall Street Journal published a column entitled "Controversial Publisher -- Racial Purist Uses Reagan Plug." Appendix to Complaint, E.N. 1 (filed Nov. 15, 1984) [hereinafter "Complaint"];1 Wall St. J., Sept. 28, 1984, at 56, col. 1. The article, written by defendant Rich Jaroslovky, a ten-year veteran of The Journal 's news staff, bore the logo "Politics 84," and was published as part of The Journal 's coverage of the 1984 presidential campaign. The article is reprinted in its entirety as Appendix A to this opinion. The article states that one Roger Pearson, an advocate of racial betterment through genetic selection, had received a letter of commendation from President Reagan and that he had exploited the letter to promote his controversial publications. According to the story, the letter was composed by a Pearson associate on the White House staff, and President Reagan had never met Mr. Pearson. Jaroslovky concluded that the incident demonstrated "how a highly ideological presidency -- conservative or liberal -- can be used by well-connected outside activities to gain respectability."

In the course of discussing Pearson's past activities and associations, the article asserted:

Other Pearson writings appeared in Western Destiny, a magazine published by the far right, anti-Semitic Liberty Lobby. Mr. Pearson edited Western Destiny briefly in the mid-1960s and wrote several books on race and eugenics that were issued by Liberty Lobby's publishing arm. These pamphlets are still sold by the National Socialist White People's Party, the Arlington, Va. based American Nazi group; Mr. Pearson says he doesn't have any connection with that group.

App. A (infra ) p. 1304.

On November 15, 1984, Liberty Lobby filed a complaint for libel in the United States District Court for the District of Columbia, basing jurisdiction on diversity of citizenship under 28 U.S.C. § 1332 (1982). Complaint para. 1. Named as defendants were Dow Jones & Co., Inc., the company that publishes The Journal, and Rich Jaroslovky, the author of the Pearson article. Id. paras. 2-3.

Liberty Lobby claims that the quoted passage is false and defamatory in two respects. First, although Liberty Lobby admits to being an anti-Zionist organization, it claims that The Journal 's characterization of it as "anti-Semitic" is false and injurious to its reputation. Complaint para. 10. Second, Liberty Lobby contends that it never published the magazine, Western Destiny ; nor did it issue any books by Mr. Pearson. Id. It further contends that no books or pamphlets issued by Liberty Lobby are or were sold by the National Socialist White People's Party. Id.

In November, 1985, after eleven months of voluminous discovery had been completed, Liberty Lobby sought and was granted leave to amend its complaint to add four additional causes of action for libel against Dow Jones. See Motion for Leave to Amend and Supplement the Complaint, E.N. 46 (filed Nov. 1, 1985). These claims were based upon a column entitled "There's Nothing Like a Libel Trial for an Education" which appeared in the editorial section of The Wall Street Journal on October 11, 1985. Id. exh. B; Wall St. J., Oct. 11, 1985, at 28, col. 3. The column was written by Ms. Suzanne Garment, a member of The Journal's editorial staff, and is reprinted in its entirety as Appendix B to this opinion.

Using as a vehicle the trial of another libel action, one between Liberty Lobby and The National Review, a magazine of opinion, the column gave the author's views "about libel suits in general and their place in democratic politics." In introducing its theme, the Garment column noted that Liberty Lobby's claim based on the Jaroslovky article was at that time pending before the district court, stating:

Over the years, Liberty Lobby and Mr. Carto have sued a number of publishers that called them racist and anti-Semitic. Still pending is a Liberty Lobby suit against The Wall Street Journal, which last year called Liberty Lobby "anti-Semitic" and reported that it had published various tracts by a promoter of racial betterment through genetic selection.

App. B (infra ) at 1305. This republication of allegedly defamatory material from the Jaroslovky story forms the basis for Liberty Lobby's second cause of action.

The body of the Garment column discussed Liberty Lobby's trial strategy in defending a counterclaim for libel brought against it by The National Review. The column described in detail the courtroom scene prior to the delivery of opening arguments to the jury. It noted the presence of "a good-looking black female lawyer" at Liberty Lobby's counsel table with Mr. Lane, the lead counsel, and went on to state, "the moment the jury filed in -- all black, as is not uncommon in the District -- you began to suspect that Mr. Lane might have something in mind." The column then summarized Liberty Lobby's opening argument to the jury, at one point quoting Mr. Lane as saying:

If you read the words of Adolf Hitler regarding superior races and advanced races and inferior races, you will have difficulty separating the words of Mr. Buckley in his editorials in the National Review from the words of Adolf Hitler.

App. B (infra ) at 1306. The column summed up its discussion of Liberty Lobby's trial strategy by stating:

So we see the Liberty Lobby standing up in court and calling Mr. Buckley racist, most likely calculating that black jurors will be too hypnotized by this possibility to consider other facts important. This is not just an ordinary lawyer's trick. This is breathtaking in its daring. Most of us would be embarrassed to appeal to a racial or religious minority audience so crudely. We know the Fair Play Patrol would at once swoop down and cart us away. But the Carto team is of sterner stuff, able to put its head down and go for broke.

Id. at 1306.

The column questioned the utility of highly inflammatory libel suits in a democratic society, and compared "Louis Farrakhan wowing them at Madison Square Garden" to "Mark Lane in front of the jury." The statements in the Garment column concerning Liberty Lobby's conduct during The National Review trial form the basis for its third, fourth and fifth causes of action for libel against Dow Jones.

On December 16, 1985, appellees filed a motion for summary judgment on the first cause of action based on the Jaroslovky article, and for judgment on the pleadings as to the four claims based on the Garment column. Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment and Judgment on the Pleadings, E.N. 57 (filed Dec. 16, 1985).

On July 10, 1986, the district court issued its memorandum opinion and order, granting appellees' motions and dismissing Liberty Lobby's complaint with prejudice. See Liberty Lobby, Inc. v. Dow Jones & Co., 638 F. Supp. 1149 (D.D.C. 1986). The district court found that the truth or falsity of The Journal's statements concerning Liberty Lobby's publishing activities was "immaterial," for, even if false, they were not "defamatory in the least of Liberty Lobby but for the . . . characterization of the entire conglomerate as 'anti-Semitic.'" Id. at 1152. On the latter score, the district court "suspect[ed] . . . that the term 'anti-Semitic,' as Jaroslovky has used it, is probably constitutionally protected opinion." Id. (citing Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970, 974-84 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127, 86 L. Ed. 2d 278, 105 S. Ct. 2662 (1985)). However, the district court went on to hold that, to the extent the charge of anti-Semitism had any objectively verifiable factual content, the statement was substantially true. Id. Relying upon the contents of a multivolume file Liberty Lobby kept on publications about Jews2 and upon the views expounded in Liberty Lobby's official organ, The Spotlight, the district court found that appellees' "evidence of Liberty Lobby's institutional anti-Semitism in its most malign sense" was "compelling." Id. With only the bald denial of the affidavit of Willis Carto, Liberty Lobby's founder and chief executive officer, weighing against appellees' evidence, the district court concluded that no reasonable jury could find by a preponderance of the evidence that the ascription of anti-Semitism to Liberty Lobby was false. Id. at 1153.

The district court also found that dismissal of Liberty Lobby's claims based on the Jaroslovky article was mandated by the complete lack of evidence that any of the allegedly defamatory statements were published with actual malice. The court noted that Jaroslovky had spent three months on intermittent research, had reviewed a large number of Liberty Lobby documents, and had consulted various articles about Liberty Lobby. Jaroslovky had shown these materials to his editor, who concurred in his judgment that Liberty Lobby was anti-Semitic. The Journal's Washington bureau chief, who was familiar with Liberty Lobby's radio program and its official publication, The Spotlight, agreed. The district court concluded that no reasonable jury could find that The Journal had acted with knowledge of falsity or reckless disregard of the truth, "there being no evidence of [actual malice] at all, much less proof that is clear and convincing." Liberty Lobby, 638 F. Supp. at 1153.

Turning to the Garment column's reference to the Jaroslovky article, the district court found that this claim was "extinguished by the demise of Count I." Liberty Lobby, 638 F. Supp. at 1153. In the alternative, the court held that the "republication" was shielded by the common law privilege accorded to fair and accurate accounts of official reports and records. Id.

The remainder of the Garment column was, in the district court's view, "simply descriptions of Garment's personal reactions to Liberty Lobby's attorney's opening statement, nothing more." Liberty Lobby, 638 F. Supp. at 1154. Even assuming Liberty Lobby's charges of bias or vindictiveness were true, Garment's comments on The National Review trial were, in the lower court's view, expressions of opinion entitled to absolute first amendment protection. Id. II. Under Fed. R. Civ. P. 56(c), summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The motion requires the court to look behind the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. The Supreme Court recently reaffirmed these principles:

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). See First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (1983). The party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c).

Where a public figure, which Liberty Lobby concedes that it is, or a public official pursues a libel action, first amendment requirements supplant both the common law of defamation and the normal standards of appellate review in several respects. First, such a plaintiff must demonstrate by at least a fair preponderance of the evidence that the allegedy defamatory statement is false. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775-78, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986); Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 284, 41 L. Ed. 2d 745, 94 S. Ct. 2770 (1974) ("Before the test of recklessness or knowing falsity can be met, there must be a false statement of fact."); Garrison v. Louisiana, 379 U.S. 64, 74, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964) ("public official [is] allowed the civil [defamation] remedy only if he establishes that the utterance was false.").

This requirement is fully applicable at the summary judgment stage. Thus, where a district court concludes upon motion or its own initiative (after proper notice) that no reasonable jury could find by a fair preponderance of the evidence that the statement complained of is false, summary judgment for the defendant should be granted. Where the question of truth or falsity is a close one, a court should err on the side of nonactionability. See Hepps, 475 U.S. at 776.

Second, a public figure or official must demonstrate by clear and convincing evidence that the defendant published the defamatory falsehood with "actual malice," that is, with "knowledge that it was false or with reckless disregard of whether it was false or not." New York Times v. Sullivan, 376 U.S. 254, 280, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). To support a libel judgment, there must be evidence which establishes in convincing fashion "that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968). Through the defendant's own actions or statements, the dubious nature of his sources, the inherent improbability of the story or other circumstantial evidence, the plaintiff must demonstrate that the defendant himself entertained a "high degree of awareness of . . . probable falsity." Garrison, 379 U.S. at 74. This requirement, too, is applicable when considering a motion for summary judgment. The question for the court is "whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2515, 91 L. Ed. 2d 202 (1986).

Finally, statements of opinion or belief are non-actionable as a matter of law. See Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 504, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984) ("Under our Constitution 'there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.'") (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974)). The absolute protection accorded statements of opinion stems, in part, from plaintiff's burden of proving falsity, a component of which is proving that a statement is amenable to disproof. But as the language of Gertz suggests, the rule has independent roots in the limitations which the first amendment places on the intrusion of any branch of government, including Article III courts, into the marketplace of ideas.

First amendment concerns also affect a court's posture in reviewing the evidence presented on summary judgment. Normally, the evidence presented upon a motion for summary judgment is construed in favor of the party opposing the motion. See United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (1983). As to the non-constitutional issues in a libel action, this standard still obtains. However, where the constitutional prerequisites of falsity and actual malice are at issue "an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the filed of free expression.'" Bose, 466 U.S. at 499 (quoting New York Times, 376 U.S. at 284-86). While Bose and prior cases involved appellate review of trial verdicts in libel actions, logic and considerations of judicial administration dictate that the same level of review apply to the granting of summary judgment. See Herbert v. Lando, 781 F.2d 298, 308 (2d Cir.) (applying Bose independent review to summary judgment for media defendant), cert. denied, 476 U.S. 1182, 106 S. Ct. 2916, 91 L. Ed. 2d 545 (1986); accord Bartimo v. Horsemen's Benevolent & Protective Ass'n, 771 F.2d 894, 894-98 (5th Cir. 1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323, 1326 (10th Cir. 1984).

We turn to an analysis of the statements at issue and the district court's rulings.

A.

Unlike the district court, we think Jaroslovky's statements concerning Liberty Lobby's publishing activities have defamatory content independent of the charge of anti-Semitism. Under District of Columbia law,3 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." Howard Univ. v. Best, 484 A.2d 958, 988 (D.C. 1984) (citation omitted). "It is only when the court can say that the publication is not reasonably capable of any defamatory meaning and cannot reasonably be understood in any defamatory sense that it can rule as a matter of law, that it was not libelous." Levy v. American Mut. Ins. Co., 196 A.2d 475, 476 (D.C. 1964). See Afro-American Publishing Co. v. Jaffe, 125 U.S. App. D.C. 70, 366 F.2d 649, 654 n.10 (D.C. Cir. 1966) (citations omitted).

Here, The Journal article by Jaroslovky indicated that Liberty Lobby had published Pearson's theories of racial supremacy and genetic selection, and that these publications were sold by an American Nazi organization. A jury could find that such an allegation, standing alone, tended "to lower [Liberty Lobby] in the estimation of the community or to deter third persons from dealing or associating with [Liberty Lobby]." Restatement (Second) of Torts § 559 (1977); see also id. illustration 2 (An allegation of membership in the Ku Klux Klan is defamatory.). We have little doubt that a District of Columbia court would find that the allegation of this type of publishing activity has sufficient defamatory content to go to a jury. See Afro-American Publishing, 366 F.2d at 655 (charge that plaintiff store owner cancelled his subscription to black magazine for racist motives and made derogatory statements about black customers could support libel verdict).

We find, however, that these statements about Liberty Lobby's publishing activities are non-actionable as a matter of federal constitutional law for two reasons. First, we are convinced that no reasonable jury could find by a fair preponderance of the evidence that these statements are false. Second, even if a jury could find that the Jaroslovky article falsely exaggerated the connection between Liberty Lobby and Pearson's writings, there is absolutely no ...


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