720 F.2d 631 (11th Cir. 1983), 82-5321, Hunt v. Liberty Lobby

Docket Nº:82-5321.
Citation:720 F.2d 631
Party Name:E. Howard HUNT, Jr., Plaintiff-Appellee, v. LIBERTY LOBBY, a D.C. Corp., Defendant-Appellant.
Case Date:November 28, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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720 F.2d 631 (11th Cir. 1983)

E. Howard HUNT, Jr., Plaintiff-Appellee,

v.

LIBERTY LOBBY, a D.C. Corp., Defendant-Appellant.

No. 82-5321.

United States Court of Appeals, Eleventh Circuit

November 28, 1983

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[Copyrighted Material Omitted]

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Fleming Lee, Washington, D.C., Carey P. DeDeyn, Sutherland, Asbill & Brennan, Atlanta, Ga., Francis M. Gregory, Jr., Washington, D.C., for defendant-appellant.

Ellis Rubin, Miami, Fla., William A. Snyder, Jr., Ober, Grimes & Shriver, Kevin A. Dunne, Baltimore, Md., for plaintiff-appellee.

Morrison & Foerster, Henry D. Levine, Washington, D.C., Bruce Rogow, American Civil Liberties Union Foundation of Florida, Nova University Law Center, Fort Lauderdale, Fla., Talburt, Kubicki & Bradley, Miami, Fla., for amicus ACLU.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, KRAVITCH and HENDERSON, Circuit Judges.

ALBERT J. HENDERSON, Circuit Judge:

The appellant, Liberty Lobby, publishes the Spotlight, a weekly newspaper distributed nationally by subscription. E. Howard Hunt, the appellee, brought this action against Liberty Lobby in the United States District Court for the Southern District of Florida seeking damages for libel based upon an article appearing in the August 14, 1978 edition of the Spotlight. 1 The jury returned a verdict for Hunt in the amount of $100,000.00 compensatory and $550,000.00 punitive damages. On appeal Liberty Lobby makes several assignments of error including insufficiency of the evidence of actual malice, incorrect jury instructions, erroneous admission of certain affidavits into evidence and improper venue. Because the sufficiency of the evidence is vigorously contested, we begin with a thorough description of the pertinent facts.

The front page of the August 14, 1978 Spotlight announced in bold face type: "CIA TO NAIL HUNT FOR KENNEDY KILLING". The headline referred the reader to page four for the details. On page four a larger headline stated "CIA TO 'ADMIT' HUNT INVOLVEMENT IN KENNEDY SLAYING." A biography of Victor Marchetti, the author of the article, appeared on this page. This brief background of the author explained that Marchetti "has been involved in U.S. Intelligence activities for almost 20 years, 14 years of that time being with the CIA, the last three years of which he was staff assistant to Richard Helms. He is the author of 'The CIA and the Cult of Intelligence' and 'The Rope Dancer.' "

The text of the article revealed an elaborate plot within the Central Intelligence Agency (CIA) to frame Hunt for the Kennedy assassination. We quote the pertinent passages at length in order to avoid any distortion of the article's meaning:

A few months ago, in March, there was a meeting at CIA headquarters in Langley, Va., the plush home of America's super spooks overlooking the Potomac River. It was attended by several high-level clandestine officers and some former top officials of the agency.

The topic of discussion was: What to do about recent revelations associating President Kennedy's accused assassin, Lee Harvey Oswald, with the spy game played between the U.S. and the USSR? (SPOTLIGHT, May 8, 1978.) A decision was made, and a course of action determined They were calculated to both fascinate and confuse the public by staging a clever 'limited hangout' when the House Special Committee on Assassinations

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(HSCA) holds its open hearings, beginning later this month.

A 'limited hangout' is spy jargon for a favorite and frequently used gimmick of the clandestine professionals. When their veil of secrecy is shredded and they can no longer rely on a phony cover story to misinform the public, they resort to admitting--sometimes even volunteering--some of the truth while still managing to withhold the key and damaging facts in the case. The public, however, is usually so intrigued by the new information that it never thinks to pursue the matter further.

We will probably never find out who masterminded the assassination of JFK--or why. There are too many powerful special interests connected with the conspiracy for the truth to come out even now, 15 years after the murder.

But during the next two months, according to sensitive sources in the CIA and on HSCA, we are going to learn much more about the crime. The new disclosures will be sensational, but only superficially so. A few of the lesser villains involved in the conspiracy and its subsequent coverup will be identified for the first time--and allowed to twist slowly in the wind on live network TV. Most of the others to be fingered are already dead.

But once again the good folks of middle America will be hoodwinked by the government and its allies in the establishment news media. In fact, we are being set up to witness yet another coverup, albeit a sophisticated one, designed by the CIA with the assistance of the FBI and the blessing of the Carter administration.

A classic example of a limited hangout is how the CIA handled--and manipulated--the Church Committee's investigation of two years ago. The committee learned nothing more about the assassinations of foreign leaders, illicit drug programs, or the penetration of the news media than the CIA allowed it to discover. And this is precisely what the CIA is out to accomplish through HSCA with regard to JFK's murder.

THEY'LL HANG HUNT

Chief among those to be exposed by the new investigation will be E. Howard Hunt, of Watergate fame. His luck has run out, and the CIA has decided to sacrifice him to protect its clandestine services. The agency is furious with Hunt for having dragged it publicly into the Nixon mess and for having blackmailed it after he was arrested.

Besides, Hunt is vulnerable--an easy target, as they say in the spy business His reputation and integrity have been destroyed. The death of his wife, Dorothy, in a mysterious plane crash in Chicago still disturbs many people, especially since there were rumors from informed sources that she was about to leave him and perhaps even turn on him.

In addition it is well known that Hunt hated JFK and blamed him for the Bay of Pigs disaster. And now, in recent months, his alibi for his whereabouts on the day of the shooting has come unstuck.

In the public hearings, the CIA will 'admit' that Hunt was involved in the conspiracy to kill Kennedy. The CIA may go so far as to 'admit' that there were three gunmen shooting at Kennedy. The FBI, while publicly embracing the Warren Commission's 'one man, acting alone' conclusion, has always privately known that there were three gunmen. The conspiracy involved many more people than the ones who actually fired at Kennedy, both agencies may now admit.

POSING AS BUM

A.J. Weberman and Michael Canfield, authors of 'Coup d'etat In America,' published pictures of three apparent bums who were arrested at Dealy Plaza just after President Kennedy's murder, but who were strangely released without any record of the arrest having been made by the Dallas police. One of the tramps the authors identified as Hunt. Another was Frank Sturgis, a long-time agent of Hunt's.

Hunt immediately sued for millions of dollars in damages, claiming he could

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prove that he had been in Washington, D C, that day--on duty at CIA. It turned out, however, that this was not true. So, he said that he had been on leave and doing household errands, including a shopping trip to a grocery store in Chinatown.

Weberman and Canfield investigated the new alibi and found that the grocery store where Hunt claimed to be shopping never existed. At this point, Hunt offered to drop his suit for a token payment of one dollar. But the authors were determined to vindicate themselves, and they continued to attack Hunt's alibi, ultimately completely shattering it.

Now, the CIA moved to finger Hunt and tie him to the JFK assassination. HSCA unexpectedly received an internal CIA memorandum a few weeks ago that the agency just happened to stumble across in its old files. It was dated 1966 and said in essence: Some day we will have to explain Hunt's presence in Dallas on November 22, 1963--the day President Kennedy was killed. Hunt is going to be hard put to explain this memo, and other things, before the TV cameras at the HSCA hearings.

Hunt's reputation as a strident, fanatical anti-communist will count against him. So will his long and close relationship with the anti-Castro Cubans, as well as his penchant for clandestine dirty tricks and his various capers while one of Nixon's plumbers. E. Howard Hunt will be implicated in the conspiracy, and he will not dare to speak out--the CIA will see to that.

The article also included a photograph of Hunt captioned "Howard Hunt--He'll be thrown to the wolves." 2

Shortly after this edition was distributed, Hunt contacted his attorney, who, in turn, wrote to the appellant demanding a retraction. In response, Liberty Lobby indicated that it would make a "thorough and conscientious" investigation of the matter. When the results of this "investigation" were not forthcoming after three weeks, Hunt's attorney again communicated with the appellant inquiring into the status of the matter. In the final letter that preceded the institution of the law suit, Liberty Lobby professed its confidence in the accuracy of Marchetti's article. The letter offered Hunt the opportunity to come to the appellant's office in Washington, D.C. to present his side of the story in an interview with Liberty Lobby employees to be published in an upcoming edition of the Spotlight. Dissatisfied with this proposal, Hunt filed his complaint.

The trial of the case was simplified by two concessions made by the...

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