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SECORD v. COCKBURN

August 27, 1990

RICHARD V. SECORD, Plaintiff,
v.
LESLIE COCKBURN, et al., Defendants


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 The plaintiff, retired Major General Richard V. Secord, filed the instant libel action against the defendants Leslie Cockburn, Andrew Cockburn, Morgan Entrekin, Atlantic Monthly Press, and Little, Brown and Company, Inc., arising out of the writing, publication and distribution of a book entitled Out of Control: The Story of the Reagan Administration's Secret War in Nicaragua, the Illegal Pipeline, and the Contra Drug Connection (1987) (hereafter " Out of Control "). This matter is before the Court pursuant to the defendants' motion for summary judgment.

 I. Subject of the Suit

 Out of Control is a book about the purported activities of a group of Americans that supported the movement of the Contras to overthrow the Sandinista government in Nicaragua. The plaintiff contends that Out of Control identifies him as a member of a "secret team" which had engaged in illegal drug trafficking, torture, murder and attempted assassination as part of its conspiracy to overthrow the Sandinista government. The plaintiff broadly alleges that "the entire text of Out of Control defames him." Statement of Points and Authorities in Support of Plaintiff's Motion in Opposition to Defendants' Motion for Summary Judgment (hereafter " Plaintiff's Opposition ") at 27. Notwithstanding such a broad allegation of defamation the plaintiff isolates the gravamen of his complaint to three specific areas. First, the plaintiff contends that " Out of Control states to the average reader that General Secord participated in, facilitated, acquiesced in or condoned an attempt to assassinate [Contra leader] Eden Pastora at La Penca in May, 1984." *fn1" Plaintiff's Statement of Material Facts as to Which There is No Genuine Issue Pursuant to Local Rule 108(h) (hereafter " Plaintiff's 108(h) Statement ") at para. 9. Second, the plaintiff contends that " Out of Control alleges that General Secord participated in, facilitated, acquiesced in or condoned the illicit purchase, transportation and sale of cocaine, opium and other illegal drugs and in drenching America in cocaine and other narcotics." *fn2" Id. at P 13. Third, the plaintiff contends that " Out of Control states and conveys to an average reader that General Secord participated in, facilitated, acquiesced, or condoned massive bribery of government officials in Iran and unconscionable profiteering in United States weapon sales to Iran." *fn3" Id. at P 16. See generally Plaintiff's Opposition at 27-31; Plaintiff's Amended Complaint at para. 12.

 II. Elements of Libel Action

 In order to prevail in a libel suit the plaintiff must demonstrate that the statements complained of are (1) defamatory, (2) false, (3) statements of fact (and not opinion), and (4) made with the requisite degree of fault. Liberty Lobby, Inc. v. Dow Jones & Co., 267 U.S. App. D.C. 337, 838 F.2d 1287, 1293 (D.C. Cir.), cert. denied, 488 U.S. 825, 102 L. Ed. 2d 51, 109 S. Ct. 75 (1988). The statements in question must be "of and concerning" the plaintiff. Summerlin v. Washington Star Co., 7 Media L. Rep. (BNA) 2460 (D.D.C. 1981). In addition, the passages will not be actionable if subject to certain common-law privileges, as for example the privilege for publication of accurate reports of official governmental proceedings. Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C. 1980).

 This Court focuses only on the issue of whether the statements were made with the requisite degree of fault. Although this Court expresses some serious doubt whether much of what plaintiff cites to in Out of Control is even of a defamatory nature of and concerning the plaintiff, this Court reaches only the issue of whether the statements were published with the requisite degree of fault in light of the October 5, 1989 status hearing and Order in which this Court established a briefing schedule for a dispositive motion on this basis pursuant to the parties' agreement.

 III. Degree of Fault: Public Figure and Actual Malice

 A public figure can prevail in a defamation suit only by proving the defendant's "actual malice." Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). More fully,

 
Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.

 Gertz, 418 U.S. at 342, 94 S. Ct. at 3008.

 A. Public Figure

 A review of the plaintiff's military career and his role in attempting to influence fundamental issues of this country's military and foreign policy illustrates his status as a public figure. The plaintiff testified in his deposition that he served as a general officer in Iran. According to plaintiff, "general officers are the senior executives and are much more involved in management . . . than in hands-on operations." Secord Deposition (I) (attached as exhibit 1 to Ringel Affidavit) at 37. The plaintiff provided that "general officers have great prestige" and are "sought after and highly competitive" positions. Id. Most fundamental, the plaintiff recognized that the general officers "absolutely" hold an important public trust. Id. at 37-38.

 The plaintiff then served as Director of International Programs for the Air Force, id. at 43-44, and as Deputy Assistant Secretary of Defense. Id. at 55. In regard to the latter position, the plaintiff described it as "a policy level assignment . . . responsible to an assistant Secretary of Defense who was in turn responsible to the Secretary of Defense." Id. at 56. The plaintiff characterized the assignment of Deputy Assistant Secretary of Defense as a "high profile job." Id. at 57.

 After leaving active service in May 1983, plaintiff was one of ten or so general or flag officers appointed by the Secretary of Defense to serve on the Special Operations Policy Advisory Group which "advised the Secretary of Defense on special operations matters that the Secretary thinks are of importance." Id. at 58-59.

 The plaintiff also represented the government of the United States as "an emissary authorized by the President" in connection with negotiations with the Iranians. Id. at 62-63. In this role the plaintiff on one occasion conveyed thanks directly from the President to the Prime Minister of Israel for assistance that the Prime Minister had rendered. Id. at 63.

 The plaintiff later voluntarily assumed a position of responsibility as head of the "Enterprise" in connection with the Iran-Contra initiative. The plaintiff testified that he "exercised overall control" over the "Enterprise" which "is the group of companies that Mr. Hakim formed to manage the Contra and the Iranian project." Testimony by Richard Secord in Iran-Contra Hearings (attached as exhibit 9 to Leslie Cockburn Affidavit) at 172.

 As the Supreme Court defined "public figure":

 
For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.

 Gertz, 418 U.S. at 345, 94 S. Ct. at 3009. The above outline of the plaintiff's career demonstrates a man committed to effecting United States military and foreign policy by the assumption of highly influential positions. In summarizing the plaintiff's military career the following exchange occurred at his deposition:

 
Q. Mr. Secord, you have talked about your career as a general, as an assistant secretary, deputy assistant secretary, as a principal emissary in a major diplomatic initiative, as commander of transportation to the Contras, your service on the SOPAG committee. Is it fair to say that you have assumed a role of special prominence in the affairs of our country ?
 
A. You can say that, I suppose.

 Secord Deposition (I) at 78-79. Indeed, any individual who holds an advisory military or diplomatic position, or otherwise attempts to shape the policy of the United States, is by definition a public figure by the fact that the policy which the individual seeks to shape ultimately effects the public. See MacNeil v. Columbia Broadcasting Sys., Inc., 66 F.R.D. 22, 25 (D.D.C. 1975) (colonel in United States Marine Corps is public official); cf. Arnheiter v. Random House, Inc., 578 F.2d 804, 805 (9th Cir. 1978) (per curiam), cert. denied, 444 U.S. 931, 62 L. Ed. 2d 189, 100 S. Ct. 275 (1979) (Navy captain removed from his position by his superiors who courted publicity to make his case a "cause celebre" is both public official and public figure).

 Moreover, the plaintiff has appeared as a speaker at many political gatherings and has been interviewed on network television programs including Nightline, Good Morning America and Cross-Fire (the latter to discuss Out of Control) and in publications, including an extended Playboy interview, demonstrating "access to the channels of effective communication" that the Supreme Court felt characterized a public figure. Gertz, 418 U.S. at 344, 94 S. Ct. at 3009. See Secord Deposition (I) at 70-73; Defendants' Statement of Material Facts as to Which There is No Genuine Issue Pursuant to Local Rule 108(h) at para. 1.f.

 Indeed, the plaintiff does not dispute that he is a public figure. In none of the papers that the plaintiff has filed with this Court in opposing the defendants' motion for summary judgment has he marshalled facts or developed argument to dispute the defendants' characterization or showing of the plaintiff as a public figure. In fact, in Plaintiff's Opposition he essentially concedes his public figure status by providing that "General Secord's activities in support of the Contra supply effort may render him a public figure for the purposes of this lawsuit . . . ." Id. at 3. Accordingly, this Court rules that the actual malice standard applies in the instant case where the plaintiff is a public figure.

 B. Actual Malice

 In the summary judgment context, the nonmoving party's burden is to come forward with "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505, 2510 (1986). As a public figure, the plaintiff can survive the defendants' motion for summary judgment only if he can point to record facts from which a reasonable jury could find pursuant to the clear and convincing standard that the defendants published Out of Control with actual malice. See id. at 255-56, 106 S. Ct. at 2513-14; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548, 2552 (1986); see also Curtis Publishing Co. v. Butts, 388 U.S. 130, 162, 87 S. Ct. 1975, 1995, 18 L. Ed. 2d 1094 (1967) (extending New York Times test to public figures).

 As the U.S. Court of Appeals for the District of Columbia has recently reiterated in defining "actual malice":

 
A [defendant] publishes an article with "actual malice" if it knowingly or recklessly disregards the truth. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 725-26, 11 L. Ed. 2d 686 (1964). The standard is not satisfied even by proof of "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." Harte-Hanks [ Communications, Inc. v. Connaughton, 491 U.S. 657,] 109 S. Ct. [2678] at 2685 [105 L. Ed. 2d 562 (1989)]. The inquiry is said to be ultimately a subjective one -- "the defendant [must have] in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262 (1968). But, as is often true for inquiries into state of mind, proof may take the form of circumstantial evidence, such as the existence of "obvious reasons to doubt the veracity of the informant or the accuracy of his reports" or the inherent improbability of the reports. Id. at 732, 88 S. Ct. at 1326; Harte-Hanks, 109 S. Ct. at 2686.

 Clyburn v. News World Communications, Inc., 284 U.S. App. D.C. 212, 903 F.2d 29, 33 (D.C. Cir. 1990).

 IV. Adequacy of Discovery

 Prior to reviewing the record in the instant case, this Court must first address plaintiff's contention that there has been inadequate opportunity in which to fully discover facts on the issue of actual malice. The suggestion that the plaintiff has not been afforded a full opportunity in which to pursue discovery simply is not supported by the record. If the plaintiff claims that he has not been able to develop a full record then the fault lies only with the plaintiff and neither with the defendants nor this Court.

 The plaintiff contends that more discovery is necessary in light of the "several stays" issued by this Court in this case. The fact of the record is that this Court issued a stay of discovery on June 21, 1988 because of its own concerns about the wisdom of plaintiff's proceeding with this action while criminal charges were pending against him. *fn4" However, the plaintiff apprised this Court that he wanted to secure "a prompt adjudication of his libel claim." Opposition of Plaintiff Secord to Stay of Proceedings at 8 (July 6, 1988). *fn5" Accordingly, this Court accepted the plaintiff's position and vacated its stay on July 12, 1988. No other stay of discovery was imposed until the deadline for depositions of defendants (September 29, 1989) had passed. The plaintiff has had an unrestricted year and a half in which to pursue discovery in the instant case.

 Plaintiff contends that he did not fully pursue discovery within this period because he had to devote his time and resources to defending his criminal charges. This was precisely one of the concerns of this Court in ordering the June 21, 1988 stay. However, by the fact that the plaintiff wanted the stay vacated, this Court and the defendants were entitled to assume that the plaintiff had sufficient ability to proceed with this case notwithstanding his pending criminal charges.

 This Court understands that at the time when the criminal indictment came down the plaintiff could have miscalculated the amount of time and money that he would have to expend on his defense, but the plaintiff never, in the subsequent one-and-a-half-year period, apprised this Court or the defendants that the demands of defending his criminal charges were more than he anticipated and were undermining his efforts to vigorously pursue the instant civil case. Indeed, the first time that this Court became aware of plaintiff's failure to fully pursue discovery was in March 1990 at the time that he filed his opposition to the defendants' motion for summary judgment.

 The plaintiff surely cannot claim surprise by the defendants' motion for summary judgment. At the status hearing in this matter on October 5, 1989 the defendants specifically apprised the plaintiff and this Court that they were intending to file a dispositive motion on the issue of actual malice. This Court accordingly established a briefing schedule, confirmed by Order, to which the defendants and the plaintiff agreed. Plaintiff did not inform this Court at that status hearing that preparing for his criminal defense had impeded the ...


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