thirty years of controversy surrounding the Kennedy assassination. To the extent that Posner's opinion rests on underlying facts, those facts are lodged in his and Lane's books. Events discussed in the two books have resisted objective verification for more than three decades. Readers may believe one book, the other, or neither; but there is no indication that Lane's theories have acquired the imprimatur of received wisdom.
Prior to Milkovich, this circuit recognized a strict dichotomy in defamation actions between assertions of opinion and assertions of fact. See, e.g., Ollman, 750 F.2d at 971. Milkovich rejected this practice. Post-Milkovich cases held that opinions can be actionable if they imply a provably false fact. See, e.g., White, 909 F.2d at 522. Thus, the task is to "determine as a threshold matter whether a challenged statement is capable of a defamatory meaning; and whether it is verifiable -- that is, whether a plaintiff can prove that it is false." Moldea II, 22 F.3d at 316-17 (citing Moldea I, 15 F.3d 1137 at 1142-45). The burden of proving falsity rests squarely on the plaintiff. He or she must demonstrate either that the statement is factual and untrue, or an opinion based implicitly on facts that are untrue.
Applying these principles in a context not far removed from the dispute the court grapples with today, the D.C. Circuit concluded: "When a reviewer offers commentary that is tied to the work being reviewed, and that is a supportable interpretation of the author's work, that interpretation does not present a verifiable issue of fact that can be actionable in defamation." Moldea II, 22 F.3d at 313. The context in Moldea II was a book review "in which the allegedly libelous statements were evaluations quintessentially of a type readers expect to find in that genre." Id. at 315. It was Moldea's book at issue, not his character, reputation or competence as a journalist. While a bad review inevitably injures an author's reputation to some extent, "criticism's long and impressive pedigree persuades us that, while a critic's latitude is not unlimited, he or she must be given the constitutional 'breathing space' appropriate to the genre." Id. (citing Sullivan, 376 U.S. at 272).
Lane insists that his case against Random House is not about who killed President Kennedy. Instead, Random House has accused Lane in no uncertain terms of being guilty of a public deceit, of duplicity and intellectual dishonesty. Random House implied that Lane has been exposed as a charlatan. Indeed, attests Lane, Random House's charges can be proven false; his veracity, integrity, intellectual honesty and candor can all be plumbed in a trial as a matter of fact.
If Random House had said what Lane said it said, perhaps we would have a more perplexing case. Even then, it is difficult to imagine how the court could assess Lane's deceitfulness, veracity, etc. without examining the assassination itself. Reckless disregard for the truth might qualify Lane for some of Random House's unstated pejoratives; but the "truth" has remained camouflaged since 1963, notwithstanding protracted analysis and debate. In Milkovich terms, if the underlying facts are not "objectively verifiable," the opinion based upon those facts is not actionable. 497 U.S. at 21. In White terms, "assertions of opinion on a matter of public concern . . . receive full constitutional protection if they do not contain a provably false factual connotation." 909 F.2d at 522. The challenged Random House statement has no provably false connotation, nor does it imply provable facts.
Moreover, Random House simply did not mention candor, integrity, duplicity, charlatanism or the other colorful terminology conjured up by Lane. The advertisement expressly said: "guilty of misleading the American public." "Guilty" is defined as "justly chargeable with or responsible for a usually grave breach of conduct." Webster's Ninth New Collegiate Dictionary 542 (1990). In this instance, the breach of conduct is misleading the public. "Mislead" is not synonymous with "deceive." The latter implies "imposing a false idea or belief," while the former is merely "a leading astray that may or may not be intentional." Id. at 329 (emphasis added). Whether or not Lane has been exposed as a charlatan, one would be hard-pressed to pluck that insinuation from the comparatively bland charge in the Random House advertisement. "Even the . . . assertion that appellants are 'blatantly misleading the public' . . . is subjective and imprecise, and therefore not capable of verification or refutation by means of objective proof." Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 728 n.7 (1st Cir.), cert. denied, 504 U.S. 974, 112 S. Ct. 2942, 119 L. Ed. 2d 567 (1992).
The contested statement in the Random House advertisement reflects differing interpretations of the murky facts surrounding the Kennedy assassination. By "expressing a point of view only . . . the challenged language is immune from liability." Phantom Touring, 953 F.2d 724 at 729. Groden concurs: "Known evidence concerning the Kennedy assassination and the extensive debate over the Warren Commission's findings demonstrate that the actual facts will never be verifiable to everyone's satisfaction. Thus, the statements in the advertisement are merely statements of Posner's argument or opinion . . . ." Groden at 14-15.
C. Commercial Speech Implications
Lane complains that Random House's purpose in advertising the Posner book was purely commercial. In Central Hudson, the Supreme Court sanctioned regulation of commercial speech, applying a level of scrutiny less strict than that reserved for non-commercial political speech. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn. of New York, 447 U.S. 557, 566, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980). Ergo, even though the Kennedy assassination was an event of immense public importance and interest, an advertisement is of lower pedigree than political speech and therefore not entitled to full protection. Lane subscribes to the Central Hudson characterization: "Many, if not most, products may be tied to public concerns. . . . [But there] is no reason for providing similar constitutional protection when such statements are made only in the context of commercial transactions." Id. at 563 n.5.
On the other hand, the Supreme Court has also held that protected speech remains protected even if styled as a solicitation to purchase. "If the allegedly libelous statements would otherwise be constitutionally protected . . . they do not forfeit that protection because they were published in the form of a paid advertisement." Sullivan, 376 U.S. at 266. "Speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976).
The critical question is whether the promotional material relates to a speech product that is itself protected. "The mere fact that the statements appear in advertisements does not compel the conclusion that the statements are commercial." National Life Ins. Co. v. Phillips Publishing, Inc., 793 F. Supp. 627, 645 (D. Md. 1992). "Defendants' economic motivation . . . is not enough to turn the statements into commercial speech." Id. at 644. In the specific context of the Random House advertisement, the underlying product is a book. Accordingly, it is essential to identify and protect "advertising which summarizes an argument or opinion contained in the book." Groden, at 13.
As Random House fittingly observed, the challenged advertisement is not about laundry detergent; it cannot be divorced from the book Case Closed; and the book is protected speech. There are 19 references to Lane in Posner's book. Lane and the other conspiracy theorists are featured in the advertisement, in part, because Case Closed dissects their theories in painstaking detail. The court finds no justification for categorizing the Random House advertisement as commercial speech, nor for diminishing the constitutional safeguards to which it is properly entitled.
VII. ATTORNEYS' FEES
Random House has cited no applicable statutory exception to the American rule that each party shall bear its own legal fees. None of the statutory exceptions known to the court seem applicable to this case. Nor has Random House documented behavior by Lane that might be considered sanctionable under 28 U.S.C. § 1927, or under Fed. R. Civ. P. 11, 16(f), 26(g), 37 or 45(c). Absent such showing, the court has no basis upon which to grant Random House's request for attorneys' fees.
For reasons more fully set forth above, the motion for summary judgment by defendant Random House is granted on all five counts. Costs shall be apportioned in accordance with Fed. R. Civ. P. 54(d)(1) and Local Rule 214. Random House's request for attorneys' fees is denied.
Mark Lane might well profit from Jefferson's sage advice: "I laid it down as a law to myself, to take no notice of the thousand calumnies issued against me, but to trust my character to my own conduct, and the good sense and candor of my fellow citizens." If nonetheless Lane is affronted by such minor provocations as the court addresses today, he may elect to minimize his exposure by opting for a lower public profile. More likely, having acknowledged that publicity is the lifeblood of his career, Lane will have to overcome his brittleness -- or seek solace elsewhere than from this court.
A separate order shall issue this date.
Royce C. Lamberth
United States District Judge
This case comes before the court on a motion to dismiss or for summary judgment by defendant Random House, Inc., and on several other motions by both parties. Based upon the filings of the parties, after consideration of the relevant law, it is hereby ORDERED that:
1. For the reasons more fully set forth in a MEMORANDUM OPINION issued by the court this date, the motion for summary judgment by Random House is GRANTED on all five counts. This action is hereby DISMISSED WITH PREJUDICE. Costs shall be apportioned in accordance with Fed. R. Civ. P. 54(d)(1) and Local Rule 214. Random House's request for attorneys' fees is denied.
2. Defendant's motion of May 12, 1994 for leave to file submission of supplemental authority is GRANTED. The submission attached to the motion is deemed to have been filed on May 12, 1994.
3. Plaintiff's motion of May 25, 1994 for leave to file a sur-reply in opposition to defendant's motion for summary judgment is GRANTED. The sur-reply attached to the motion is deemed to have been filed on May 25, 1994. The court notes, however, that plaintiff's sur-reply is not confined to commenting upon the supplemental authority submitted by the defendant on May 12, 1994. Plaintiff offers further legal argument centered on cases that were already briefed fully by the parties. Were it not for disposition of summary judgment in favor of defendant, this new round of briefing might not have been permitted.
4. Plaintiff's motion of September 21, 1994 for leave to file comment on the New York Southern District's decision in Groden v. Random House, Inc. is GRANTED. The comment attached to the motion shall be deemed to have been filed on September 21, 1994.
5. Plaintiff's motion of February 1, 1994 to compel defendant's attendance at initial discovery conference and for Rule 37(g) sanctions for defendant's failure to make discovery is DENIED.
6. Defendant's motion of February 10, 1994 to stay discovery pending resolution of defendant's motion for summary judgment is DENIED as moot in light of today's grant of summary judgment.
7. Plaintiff's motion of June 21, 1994 to strike false, scurrilous matter from defendant's pleadings is DENIED. The court finds nothing in defendant's pleadings so obviously "false, scurrilous and gratuitously offensive" to warrant being stricken. For the same reason, plaintiff's motion of July 27, 1994 seeking Rule 11 sanctions against Random House for gratuitously including false, scurrilous matter in defendant's pleadings is DENIED.
8. Defendant's motion of October 14, 1994 to strike the letter from attorney Roger Bruce Feinman to this court is DENIED. Prior to defendant's motion, Feinman's letter was not part of the official record in this case. Moreover, the court has not accorded and would not accord any weight whatsoever to a communication from an attorney whose only connection to this case was unsuccessful representation of a plaintiff in a similar case in another state.
Royce C. Lamberth
United States District Judge
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