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THOMAS v. NEWS WORLD COMMUNS.

February 23, 1988

William Thomas, et al., Plaintiffs,
v.
News World Communications, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

 Louis F. Oberdorfer, Judge.

 Pro se plaintiffs William Thomas, Ellen Thomas, Concepcion Picciotto, and Robert Dorrough, individually and as organized, in various combinations, into the "White House Antinuclear Vigil" and the "Peace Park Anti-Nuclear Vigil," sue numerous official and private individuals and organizations for injuries allegedly arising out of plaintiffs' communicative activities in Lafayette Park.

 On July 7, 1987, plaintiffs filed a complaint accompanied by a Motion for Preliminary Injunction and a Temporary Restraining Order naming as defendants, inter alia, President Ronald Reagan; the Reverend Sun Myung Moon, News World Communications, doing business as The Washington Times, along with several of the newspaper's principals and employees; Jay Young, a political activist; the Young Americans for Freedom ("YAF"); Donald Hodel, in his official capacity as Secretary of the Interior; two assistant solicitors in the Department of the Interior; two particular United States Park Police officers; and "Numerous Identifiable Agents of the United States Secret Service and the United States Park Police." Plaintiffs seek damages from all defendants totalling more than $ 150 million. In addition, plaintiffs pray for declaratory and injunctive relief against the enforcement of regulations presently codified at 36 C.F.R. § 7.96. Complaint at 29.

 Two separate dispositive motions have been filed. News World Communications and defendants related to that organization (hereinafter " Times defendants") have filed a motion to dismiss. The federal defendants have filed a motion to dismiss or for summary judgment. For the reasons discussed in this Memorandum, an accompanying Order grants the Times defendants' motion to dismiss for failure to state a claim upon which relief can be granted.

 I.

 Plaintiffs have attempted to maintain a continuous antinuclear demonstration in front of the White House, along Pennsylvania Avenue, and in Lafayette Park, Washington, D.C. One of the individual plaintiffs commenced his vigil in 1981; others joined periodically throughout the following six years.

 Accompanied by signs bearing political and religious messages, and supplied with literature expressing and advocating various ideological views, plaintiffs have sought

 
to attract the attention of the general public, intending to communicate a message of broad public concern and to notify the general public of the availability of free intellectual discourse.

 Complaint at para. 23. Plaintiffs summarize their message as one of "'Peace through Love,'" and "'love your enemies.'" Id. at P 25. Those principles find practical application, plaintiffs maintain, in their conviction that "'unless humanity eliminates nuclear weapons, nuclear weapons will eliminate humanity.'" Id.

 Plaintiffs' continuous vigil has been interrupted numerous times over the years by warnings, arrests, and convictions for violations of Department of the Interior regulations restricting the time, place, and manner of First Amendment activity near the White House and on federal park lands, such as Lafayette Park. In particular, the plaintiffs have run afoul of prohibitions on "camping" in the Park, codified at 36 C.F.R. § 7.96(i)(1) (1987). That rule defines the proscribed activity, in part, as

 
the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep . . . or storing personal belongings . . . .

 36 C.F.R. § 7.96(i)(1) (1987). In addition, plaintiffs have been cited for violations of Lafayette Park restrictions governing the size and the structure of signs, as well as sign attendance requirements, which regulations are codified at C.F.R. § 7.96(g)(5)(x)(B) (1987).

 In 1984, plaintiffs filed suit against Department of the Interior officials challenging the constitutionality of these regulations as violative of plaintiffs' First Amendment rights of speech and association. In July of 1987, plaintiffs filed a second action, re-alleging many of their earlier challenges to the camping regulations and adding new challenges to a three-foot attendance sign regulation that had been promulgated since the filing of the original suit. The 1987 complaint, however, named as defendants not only federal officials and Park Police officers, as had the original complaint. The 1987 complaint also alleged that constitutional and common law torts had been committed against plaintiffs by The Washington Times, its parent company, News World Communications, its editor-in-chief, and various employees and associates of the newspaper, alone and in conspiracy with each other and the federal defendants.

 The federal defendants sued in the 1984 action have filed a motion to dismiss, or, in the alternative, for summary judgment on that complaint. The federal defendants in the 1987 case have also filed a motion to dismiss or for summary judgment. Three defendants affiliated with The Washington Times have filed a joint motion to dismiss the 1987 complaint as against them. See Defendants News World Communications, DeBorchgrave and Pak's Memorandum in Support of Motion to Dismiss (hereinafter " Times ' Motion to Dismiss"). Defendant Jay Young has filed an answer, which denies all allegations of wrongdoing and, like the motion filed on behalf of all other Times defendants, argues that plaintiffs have failed to state a claim upon which relief can be granted.

 This Memorandum and accompanying Order address only those claims made by plaintiffs against the nonfederal defendants. They dispose only of the Times defendants' motion to dismiss the 1987 complaint. The federal defendants' dispositive motions in both the 1984 and the 1987 actions remain under advisement.

 For the purposes of the present Memorandum, defendant Young's answer shall be treated as incorporating the other Times defendants' motion to dismiss; the resolution of the Times motion shall apply as well to all claims against defendant Young. Defendant Sun Myung Moon has filed neither an answer nor any other responsive pleading. Similarly, no response has been received from defendant Masty nor from defendant organization YAF. Accordingly, the 1987 complaint's allegations against these two parties also remain under advisement.

 II.

 The 1987 complaint claims that defendants have acted, individually and in conspiracy with one another, to infringe plaintiffs' First Amendment rights. Specifically, plaintiffs allege that defendants "utilize[d] regulatory schemes, disinformation, psychological violence, [and] public defamation of character" in an effort to interfere with the twenty-four hour demonstration conducted by plaintiffs in Lafayette Park. Complaint at para. 20.

 Plaintiffs contend that The Washington Times, through its editors, reporters, and commentators, has engaged in a campaign to discredit plaintiffs, their political convictions, and their chosen mode of First Amendment expression. To this end, plaintiffs allege, the Times has "repeatedly" published articles and cartoons that

 
portray a distorted picture of plaintiffs' presence, words and ideas for the purpose of furthering defendants' collective intent to maliciously, falsely, recklessly, cause public defamation . . . thereby . . . irresponsibly plant[ing] seeds of untruth and prejudic[ing] readers' minds against plaintiffs.

 Complaint at para. 75. Plaintiffs refer, in particular, to a series of what they describe as "editorials," accompanied on at least one occasion by a satirical cartoon making oblique reference to two of the plaintiffs, that appeared in the Times in February and March of 1983. See id. at PP 45, 47-49. These columns, entitled "Defacing the White House," "Defacing the White House: II," and "Defacing the White House: Update," refer both obliquely and explicitly to several of the plaintiffs and criticize "the garbage that passes for protest signs left night and day" on the White House sidewalk and in Lafayette Park. See id. at Exhibit 13. These editorials refer to various plaintiffs as "bums" or "pitiable lunatics." See id. at Exhibit 15. The writers denigrate plaintiffs' communicative placards as "gibberish" and "trash." See, e.g., id. Plaintiffs characterize these comments as false and defamatory statements of fact. *fn1"

 The complaint alleges that the Times ' "dissemination of malicious disinformation" has had at least three injurious consequences. First, the newspaper's publications regarding plaintiffs purportedly represent an "intentional infliction of emotional distress." Id. at P 78; see id. at P 93 ("Count Two"). Second, plaintiffs argue, the publications, taken together, reflect a "smear campaign" intended to injure plaintiffs' reputations and "the pursuit of their lives' work and religious practice." Id. at para. 79; see id. at paras. 93 ("Count Three"), 94, 96. Third, plaintiffs maintain that, through such defamatory publications, the Times conspired with the federal defendants, which conspiracy was intended to and did result in the promulgation of federal regulations that interfere with plaintiffs' exercise of their First Amendment rights of expression and association. See id. at PP 20, 95.

 The complaint alleges that the "raid" occurred at 4:00 A.M. on July 4, 1985. Plaintiffs claim that they were attacked in the park by a group of "abusive and intimidating" persons who destroyed or damaged several of plaintiffs' signs. Id. at P 60. This group, purportedly, also attempted to remove several signs from the park using a van driven by defendant Young. Members of the group allegedly erected signs of their own where plaintiffs' had stood. Id.

 Not only did the alleged assault result in damage to property and injury to person, plaintiffs claim, but the "raid" generated further defamation of plaintiffs in Times publications. Plaintiffs contend that a news story about the incident, published on July 5, 1985 under the byline of defendant Masty, contained an "intentionally misleading" account of the event, which article, plaintiffs claim, erroneously characterized the YAF as "Freedom Fighters" while labelling plaintiffs as "weirdos" and "screwballs." Id. at P 61. Maintaining that none of their number is or has ever been a member of any Communist or Socialist party, nor "even 'the screwball left,'" plaintiffs conclude that the Times defendants took advantage of the assault further to defame plaintiffs. Id. at P 62.

 III.

 Plaintiffs seek to state a cause of action against the Times defendants, individually and in conspiracy with the federal defendants, under 42 U.S.C. §§ 1983, 1985(3) and/or 1986. See, e.g., id. at PP 75, 78-86. In addition, the complaint attempts to assert common law libel and assault claims against various defendants.

 Defendants have filed a motion to dismiss resting on numerous grounds. For the reasons discussed in this Memorandum, an accompanying Order grants the Times defendants' motion. The Washington Times cannot be held liable for money damages to individuals whom the newspaper's editors criticize in published opinions, no matter how vituperative that criticism. Even if the First Amendment could tolerate such an action, plaintiffs here have failed to state a claim under 42 U.S.C. §§ 1983, 1985(3), or 1986. Moreover, plaintiffs' common law libel claim, and the assault claims arising out of the alleged "raid" in Lafayette Park, are barred by the District of Columbia statute of limitations which explicitly provides only one year in which to file actions for these and other torts of this nature, including plaintiffs' claim for intentional infliction of emotional distress. The limitations period expired in July of 1986. These flaws prove fatal to plaintiffs' entire action against the Times defendants.

 In addition to these three grounds, defendants move to dismiss on several alternative theories: that service of process against them was insufficient; that, because plaintiffs fail to state their claim under federal civil rights statutes, this Court lacks subject matter jurisdiction over the pendent common law claims; that the complaint fails to state a claim for any of its common law tort theories; and that the organizational plaintiffs lack standing to bring this action. Since the accompanying Order's rulings on the first three grounds are dispositive, it is unnecessary to address the several alternative grounds advanced for dismissal.

 A.

 In setting forth both the libel claim against The Washington Times and the claim that the newspaper has conspired to infringe plaintiffs' First Amendment rights, the complaint focuses on newspaper editorials and cartoons critical of plaintiffs and of their chosen form, substance, and location of expression. Plaintiffs' defamation allegation rests on "misrepresentations" about plaintiffs purportedly contained in those publications.

 It is apparent from plaintiffs' allegations that, in essence, they charge the Times with vigorous espousal of a political position contrary to plaintiffs'. The complaint contends that the newspaper has criticized sharply, and in uncomplimentary terms, plaintiffs' expressive activity in front of the White House and in Lafayette Park. But it is a core purpose of the First Amendment to protect the newspaper's right to publish even vituperative editorials, hostile cartoons, and news articles critical of opponents in a political debate. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257-58, 41 L. Ed. 2d 730, 94 S. Ct. 2831 (1974); Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127, 86 L. Ed. 2d 278, 105 S. Ct. 2662 (1985).

 The consequences of this principle for plaintiffs' action here are twofold. First, recognition of the editorial statements at issue as constitutionally protected expression in their own right compels a conclusion that the newspaper cannot be held liable for damages arising from actual or perceived injury to those who are criticized or even ridiculed within that speech. Second, recognizing the statements' constitutional status leads to rejection of plaintiffs' conspiracy claims under 42 U.S.C. §§ 1983 and 1985(3).

 (1)

 Plaintiffs primarily challenge statements made about them, overtly and obliquely, in articles denominated as "editorials." See Complaint at paras. 47-51. Defendants contend that the Times ' statements, unlike typical news reports, are nothing other than statements of opinion by the newspaper and its managers. See Times ' Motion to Dismiss at 29-31. *fn2"

 If opinion, the statements' constitutional protection rests on what has been termed the "common ground" of First Amendment doctrine:

 
Under the First Amendment 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 ...

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