Ollman v. Evans

Decision Date06 October 1983
Docket NumberNo. 79-2265,79-2265
Citation230 U.S.App.D.C. 44,713 F.2d 838
Parties, 9 Media L. Rep. 1969 Bertell OLLMAN, Appellant, v. Rowland EVANS, Robert Novak.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 79-0526).

Isidore Silver, New York City, a member of the Bar of the Supreme Court of New York, pro hac vice, by special leave of court, with whom Alan Dranitzke, Washington, D.C., was on the brief, for appellant.

A. Daniel Feldman, Chicago, Ill., for appellees. Ronald A. Jacks, Chicago, Ill., also entered an appearance for appellees.

Before ROBINSON, Chief Judge, WALD, Circuit Judge, and MacKINNON, Senior Circuit Judge.

PER CURIAM:

The judgment of the District Court is reversed and the case is remanded to the District Court for further proceedings. Chief Judge Robinson concurs in the judgment for the reasons set forth in his opinion. Circuit Judge Wald concurs in the remand for the reasons set forth in her opinion. Senior Circuit Judge MacKinnon concurs in the remand subject to the principles set forth in his opinion.

ROBINSON, Chief Judge:

This defamation suit is now before this court on the District Court's grant of summary judgment for the defense. 1 The appeal presents one major issue: Are allegedly defamatory statements of which the appellant complains representations of fact capable of supporting an action for libel or expressions of opinion unconditionally protected by the First Amendment? Because I think there may well be material issues of fact affecting the availability of the opinion privilege for several of the statements, I would reverse the judgment of the District Court and remand the case for further proceedings.

I

The appellant, Bertell Ollman, is a Marxist professor of political science. 2 In March, 1978, a search committee composed of political scientists at the University of Maryland nominated Ollman to head that institution's Department of Politics and Government. 3 The nomination was approved by the Provost of the University and the Chancellor of the College Park campus, and allegedly was faring quite well until the event precipitating this litigation transpired. 4

The appellees, Rowland Evans and Robert Novak, are authors of a widely-published syndicated column. 5 On May 4, 1978, an article they prepared on Ollman's candidacy appeared in the Washington Post and other newspapers across the country. 6 Captioned "The Marxist Professor's Intentions," this column touched briefly on an asserted "public debate" over the propriety of Ollman's nomination, and then focused on what the authors denominated the "central question":

... not Ollman's beliefs, but his intentions. His candid writings avow his desire to use the classroom as an instrument for preparing what he calls "the revolution." Whether this is a form of indoctrination that could transform the real function of a university and transcend limits of academic freedom is a concern to academicians who are neither McCarthyite nor know-nothing. 7

There followed several paragraphs which, by selected quotations from Ollman's writings, tended to suggest that Ollman regards the classroom as a forum for winning adherents to Marxism. The article then asserted:

Such pamphleteering is hooted at by one political scientist in a major eastern university, whose scholarship and reputation as a liberal are well known. "Ollman has no status within the profession, but is a pure and simple activist," he said.

Confiding that "[w]hile Ollman is described in news accounts as a 'respected Marxist scholar,' he is widely viewed in his profession as a political activist," the column described Ollman as "an outspoken proponent What is the true measurement of Ollman's scholarship? Does he intend to use the classroom for indoctrination? Will he indeed be followed by other Marxist professors? Could the department in time be closed to non-Marxists, following the tendency at several English universities?

                [230 U.S.App.D.C. 46] of 'political Marxism.' "   It concluded by posing several questions
                

Deeming libelous several statements and innuendoes in this piece, Ollman, through his counsel, wrote to Evans and Novak demanding that they print a retraction. 8 This they declined to do. 9 Ultimately, Ollman was denied the departmental chairmanship. 10 He alleges that loss of this post was attributable to false and defamatory statements in the column; 11 additionally, he avers that it damaged his reputation as a "scholar of integrity" and caused him "great distress and mental anguish." 12 Charging Evans and Novak with actual malice, he seeks punitive as well as compensatory damages. 13

Evans and Novak moved for judgment on the single ground that "all of the allegedly libelous statements are statements of opinion protected by the First and Fourteenth Amendments to the Constitution of the United States." 14 The District Court agreed, characterizing the complained-of passages as "opinions," "conclusions," and "interpretations," all of which in its view were constitutionally insulated. 15 Perceiving no indication that any of the supporting data outlined in the column were false, and discerning no implication that there existed other, undisclosed facts that were defamatory, the court granted the motion. 16 On appeal, Ollman attacks each facet of the court's reasoning.

II

The First Amendment embodies a special solicitude for unfettered expression of opinion. That proposition is traceable to Gertz v. Robert Welch, Inc., 17 where the Court stated:

We begin with the common ground. 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 While this passage was the first clear verbalization of the degree to which the Constitution preempts local libel laws in the area of defamatory opinion, the Court previously had hinted at limitations on governmental power to impose civil or criminal liability for statements of belief, judgment, or sentiment. In New York Times Co. v. Sullivan, the landmark decision that first explicated the interplay between constitutional guarantees of free speech and press and common law sanctions for defamatory misstatement, the Court observed:

[230 U.S.App.D.C. 47] judges and juries but on the competition of other ideas. 18

Since the Fourteenth Amendment requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expressions of opinion based upon privileged, as well as true, statements of fact. Both defenses are of course defeasible if the public official proves actual malice.... 19

And in Garrison v. Louisiana, a prosecution for criminal libel, the Court again adverted to fair comment, finding it unnecessary to decide in the context of that case "whether appellant's statement was factual or merely comment, or whether a State may provide any remedy, civil or criminal, if defamatory comment alone, however vituperative, is directed at public officials." 20

The opinion privilege set out in Gertz thus was foreshadowed in earlier pronouncements, although the degree of constitutional protection to be afforded statements of belief, judgment, or interpretation--a protection seemingly absolute under the Gertz formulation--might not have been fully anticipated. But while Gertz confirms the existence of a privilege for expressions of opinion, neither that nor any other Supreme Court decision has provided much guidance for recognizing statements that are "opinion" for First Amendment purposes.

New York Times involved misstatements obviously factual in nature about the handling of incidents of racial unrest by police, 21 and its reference to fair comment appears, almost as an afterthought, in a footnote at the end of the opinion. The allegedly libelous comments in Garrison --accusations that certain judges were lazy, inefficient, and corrupt--were more problematic. However, the Court disposed of the case on the ground that the criminal statute at issue penalized unconstitutionally both spitefully-motivated true accusations and negligently-made misstatements about public officials. 22 Because it invalidated the statutory basis for the prosecution, the Court did not find it necessary to classify the remarks as fact or opinion. 23

Greenbelt Cooperative Publishing Association v. Bresler, 24 a pre-Gertz decision, has subsequently been treated by the Court as an "opinion" case, 25 even though it did not refer explicitly to the opinion-fact dichotomy. There the defendant newspaper had fully and truthfully reported the proceedings of a city council meeting at which Bresler's request for a zoning variance was the subject of heated debate. The reports quoted several speakers' characterization of Bresler's position as "blackmail." 26 After It is simply impossible to believe that a reader who reached the word "blackmail" in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meeting or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime. 28

                [230 U.S.App.D.C. 48] determining that the jury had been improperly instructed on the meaning of "malice," the Court went on to hold that the complained-of statement could
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