inapplicable merely because an official's private reputation, as well as his public reputation is harmed." Garrison, supra, at 77. The Court asserted that "anything which might touch on an official's fitness for office is relevant." Id. In his answers to interrogatories, Mr. Buendorf explained that a "anyone in government with a secret clearance who is practicing homosexual sex is subject to being blackmailed or compromised for fear of disclosure." Defendants' Motion for Summary Judgment, Exh. A, No. 27, at 12. Essentially, Mr. Buendorf believes that his professional reputation has been damaged by the false statements because he will no longer be regarded as "heterosexual, moral, law-abiding, sexually normal, disease-free, blackmail proof, free from public ridicule and worthy of respect." Id.
Mr. Buendorf's frank reflections show that statements falsely labelling a Secret Service agent as a homosexual "might touch on" his ability to perform official duties. Garrison, supra at 77. Essentially, Mr. Buendorf shows that if Mr. Schorr's statements were true, they could affect an individual's ability to perform public duties as the Special-Agent-in-Charge of the Secret Service detail assigned to protect the former president of the United States. As in Garrison, where the district attorney's statements attacked the honesty and personal integrity of some judges, Mr. Schorr's statements attacked Mr. Buendorf's reputation as a heterosexual, law-abiding individual, who is insulated from blackmail and negative innuendo. Although the Court does not doubt that the false statements had a personal impact on Mr. Buendorf, his argument is not persuasive. The Supreme Court and lower courts have construed the rule of New York Times Co. v. Sullivan to include almost any comment regarding a public official. See generally, Bruce W. Sanford, Libel and Privacy § 7.2.4 at 285 (2d. ed. 1991); Rodney A. Smolla, Law of Defamation § 2.27 at 2-94 (Release #6, 1/93). As in Garrison, the Court does not think "that [the] statement may be considered as one constituting only a purely private defamation." Id. at 76. The Court finds that the statement is sufficiently related to Mr. Buendorf's official conduct, and therefore the rule of New York Times Co. v. Sullivan applies.
d. Actual Malice
The First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that the statement was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, supra at 279-280. Therefore, in order for plaintiff to succeed, he must show that Mr. Schorr knew that his statement was false, or that Mr. Schorr had reckless disregard for whether the statement was true or not. The facts on the record support the Court's finding that Mr. Schorr made the statement without knowledge that it was false. See supra at 4-7.
The Court turns to the question of whether Mr. Schorr's "statement was made with reckless disregard of whether it was false or not." New York Times, supra at 280. In order to prove that a statement was made with reckless disregard for the truth, "there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant, supra at 731. The Supreme Court has held that "failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 105 L. Ed. 2d 562, 109 S. Ct. 2678 (1989).
There is no evidence in the record to suggest that the defendants "entertained serious doubts" as to whether or not Mr. Buendorf was a homosexual. The evidence shows that the defendants could have been more diligent in their research. But this error does not rise to the level of "reckless disregard" as declared by Harte-Hanks.
At oral argument, plaintiff's counsel conceded that there was no "actual malice" in this case, but then went on to argue that the defendants demonstrated "reckless disregard" because they "sent a little girl up there to get Facts on File. Plaintiff failed to acknowledge that "reckless disregard" is part and parcel of "actual malice." As plaintiff admits there was no "actual malice," there cannot be "reckless disregard." See New York Times, supra at 279-280 ("actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.") (emphasis added). In spite of plaintiff's misinterpretation of New York Times Co. v. Sullivan, the rule is clear: failure to investigate thoroughly before publication, does not rise to the level of reckless disregard. See Harte-Hanks, supra at 688. Based upon the alleged facts and the "actual malice" standard defined in New York Times and its progeny, the Court finds that there is no evidence of "reckless disregard for the truth" in this case. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974). Accordingly, the Court concludes that the record does not contain clear and convincing evidence to support a jury finding of "actual malice." See Liberty Lobby, supra at 255-256.
The record shows that the defendants, Mr. Schorr and NPR made a mistake. They misnamed the plaintiff as the individual who was exposed as being a homosexual after an attempted assassination of President Ford in 1975. Because the plaintiff is a public official, he was held to the difficult task of proving "actual malice" by the defendants. [This standard] "exacts a . . . high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Gertz, supra at 342.
The defendants clearly are entitled to the protections offered by New York Times Co. v. Sullivan, supra. The plaintiff does not show that Mr. Schorr and NPR made the false statement with "actual malice," therefore, plaintiff is not entitled to recover damages for the alleged defamatory falsehood. This Court wholeheartedly echoes the Supreme Court's conclusion that "the First Amendment requires that we protect some falsehood in order to protect speech that matters." Gertz, supra at 341.
For the reasons set forth above, pursuant to Federal Rule of Civil Procedure 56, the Court finds that there is no genuine issue as to any material fact in this case. The defendants' Motion for Summary Judgement is granted and the Complaint is dismissed with prejudice. An appropriate Order is attached.
JUNE L. GREEN
U.S. DISTRICT JUDGE
Dated: May 19, 1993
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in F. Supp.]
ORDER - May 18, 1993, Filed
Upon consideration of the defendants' Motion for Summary Judgment, the arguments presented before the Court on April 29, 1993, the entire record herein, and for the reasons set forth in the accompanying Memorandum, it is by the Court this 19th day of May 1993
ORDERED that the defendants' Motion for Summary Judgment is granted; it is further
ORDERED that summary judgment is entered in favor of each of the defendants in the above captioned matter; it is further
ORDERED that the Complaint is dismissed with prejudice; and it is further
ORDERED that the Clerk shall mail conforming copies of this Memorandum and Order to:
CAHILL GORDON & REINDEL
80 Pine Street
New York, NY 10005
Donald J. Mulvihill
CAHILL GORDON & REINDEL
1990 K Street, N.W.
Washington, D.C. 20006
Theodore A. Miles
Rynthia M. Rost
2025 M Street, NW
Washington, D.C. 20036
Michael T. O'Bryan
8630 Fenton Street, #108
Silver Spring, MD 20910
James Martin Davis
500 American Charter Center
Omaha, Nebraska 68102
JUNE L. GREEN
U.S. DISTRICT JUDGE