English law, holding that "establishment of a claim for libel under the British law of defamation would be antithetical to the First Amendment protection accorded the defendants." In Bachchan, the court declined to recognize or enforce an English libel judgment on both constitutional and public policy grounds.
Although the court recognizes that there is case law rejecting arguments for non-recognition of a foreign judgment based on public policy grounds, those cases are distinguishable in that they concern minor differences in statutory law and in rules of civil procedure or corporate or commercial law. See Ackermann v. Levine, 788 F.2d 830, 842 (2d Cir. 1986) (noting that "mere variance with local public policy is not sufficient to decline enforcement").
In this case, libel standards that are contrary to U.S. libel standards would be repugnant to the public policies of the State of Maryland and the United States. Therefore, pursuant to section 10-704(b)(2) of the Recognition Act, this court declines to recognize the foreign judgment.
II. Deprivation of First and Fourteenth Amendment rights to the Constitution.
A. British Libel Law v. U.S. Libel Law
British law on libel differs from U.S. law. In the United Kingdom, the defendant bears the burden of proving allegedly defamatory statements true and the plaintiff is not required to prove malice on the part of the libel defendant. See GATLEY ON LIBEL AND SLANDER 6-7 (Philip Lewis, M.A., ed., 1981) (explaining that "in the tort of defamation the law presumes malice in this sense from the mere act of the defendant in publishing the defamatory matter," that "the state of mind, then, of a person who publishes a libel or slander is immaterial in determining liability ...., and that "even a bona fide belief that the words are true will afford no defence in the absence of privilege"); DUNCAN AND NEILL ON DEFAMATION 51 (Sir Brian Neill, ed., 1983) (explaining that "the law presumes that defamatory words are false and the plaintiff need do no more than prove that defamatory words have been published of him by the defendant; it is for the defendant to prove that the words are true, if he can"). As a result, a libel defendant would be held liable for statements the defendant honestly believed to be true and published without any negligence. In contrast, the law in the United States requires the plaintiff to prove that the statements were false and looks to the defendant's state of mind and intentions. In light of the different standards, this court concludes that recognition and enforcement of the foreign judgment in this case would deprive the plaintiff of his constitutional rights.
B. Protected Speech
Speech similar to the plaintiff's statements have received protection under the First Amendment to the Constitution and are thereby unactionable in U.S. courts. In Hustler Magazine. Inc. v. Falwell, 485 U.S. 46, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988), Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 41 L. Ed. 2d 745, 94 S. Ct. 2770 (1974) and Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (1970), the Supreme Court held that hyperbole is not actionable. Plaintiff contends that his statements were plainly hyperbolic because they were stated in an attempt to portray defendant's extremist position.
In addition, in the United States, courts look to the context in which the statements appeared when determining a First Amendment question. Moldea v. New York Times Co., 306 U.S. App. D.C. 1, 22 F.3d 310 (D.C. Cir. 1994), the most recent D.C. Circuit case concerning the First Amendment, confirmed the importance of context in a First Amendment analysis. In Moldea, the D.C. Court of Appeals reversed itself by admitting error and stated that "it is in part the settings of the speech in question that makes their hyperbolic nature apparent, and which helps determine the way in which the intended audience will receive them." Id. at 314. Although the Supreme Court in Milkovich v. Lorain Journal Co., 497 U.S. 1, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990), failed to take context into consideration, the court in Moldea explained that the Supreme Court did not reject the importance of context, but simply discounted it in the circumstances of that case." Moldea, 22 F.3d at 314. See also, Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970, 1010 (D.C. Cir. 1984) (en banc) (Bork, J., Concurring) (stating that allegedly defamatory statements appearing on op-ed pages are "an assertion of a kind of fact, it is true, but a hyperbolic 'fact' so thoroughly embedded in opinion and tendentiousness that it takes on their qualities"). cert. denied, 471 U.S. 1127, 86 L. Ed. 2d 278, 105 S. Ct. 2662 (1985).
In the case at hand, the court notes that the British judgment was based on jury instructions which asked the jury to ignore context. Therefore, this court finds that if the statements were read in context to the original article or statement and in reference to the location of the statements in the newspaper, a reader would reasonably be alerted to the statements' function as opinion and not as an assertion of fact.
C. Limited Public Figure
The Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), explained that a public figure must show by clear and convincing evidence that the libel defendant published defamatory statements with actual malice. See New York Times Co., 376 U.S. at 279-80 (articulating that constitutional safeguards prevent a public official from recovering damages resulting out of defamatory remarks relating to his official conduct unless the remarks were made with actual malice or with reckless disregard of whether the remarks were false or not); Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511, 115 L. Ed. 2d 447, 111 S. Ct. 2419 (1991) (defining actual malice as "publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity"). In Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967) and confirmed in Milkovich, the Supreme Court extended this standard to a nonpublic person who is "'nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.'" Gertz, 418 U.S. 323, 336-337 (quoting Butts, at 164 (Warren, C.J., concurring in result)). See Gertz, 418 U.S. at 351 (defining a nonpublic person as one who "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues").
The defendant in this case has described himself as a prominent activist for Human Rights in the Soviet Union since 1955.
Therefore, for purposes of his article about the composition of Russian personnel hired by Radio Free Europe/Radio Liberty, the court finds that the defendant was a limited public figure. In light of defendant's status as a limited public figure, the plaintiff is entitled to all the constitutional safeguards concerning speech used against public figures.
During the trial in England, because of British libel standards for the defense of "fair comment", the court never looked to the degree of fault or the accused party's intentions. Also, although the British court determined that the plaintiff's use of inverted commas around certain words may have falsely mislead a reader to believe that the defendant actually wrote those words, the court in Masson concluded that "a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity...The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case". Masson, 501 U.S. at 517. As a result, since there appears to be no proof that the plaintiff made the statements with actual malice, the plaintiff enjoys the constitutional protection for speech directed against public figures.
For the reasons stated herein, the court grants summary judgment in favor of the Plaintiff. A separate order shall follow.
Ricardo M. Urbina
United States District Judge