746 F.2d 1563 (D.C. Cir. 1984), 83-1471, Liberty Lobby, Inc. v. Anderson

Docket Nº:83-1471.
Citation:746 F.2d 1563
Party Name:LIBERTY LOBBY, INC., et al., Appellants v. Jack ANDERSON, et al.
Case Date:November 02, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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746 F.2d 1563 (D.C. Cir. 1984)

LIBERTY LOBBY, INC., et al., Appellants


Jack ANDERSON, et al.

No. 83-1471.

United States Court of Appeals, District of Columbia Circuit

November 2, 1984

Argued Jan. 20, 1984.

As Amended .

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-02240).

Mark Lane of the Bar of the Supreme Court of New York, pro hac vice by special leave of the Court, with whom Fleming Lee, Washington, D.C., was on the brief, for appellants.

Michael D. Sullivan, Washington, D.C., with whom David J. Branson and Leonard Appel, Washington, D.C., were on the brief, for appellees.

Before EDWARDS and SCALIA, Circuit Judges, and HARRIS, [*] District Judge of the United States District Court for the District of Columbia.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

Liberty Lobby, a not-for-profit corporation incorporated under the laws of the

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District of Columbia, and Willis Carto, its founder and treasurer, a citizen of California, brought this suit in the District Court for the District of Columbia against Bill E. Adkins, a Texas citizen, Jack Anderson, a Maryland citizen, and the Investigator Publishing Company, a corporation formed under the laws of the State of Texas. 1 Their suit, founded on diversity of citizenship, 28 U.S.C. Sec. 1332 (1982), charged that the defendants had libeled them in two articles printed in the October 1981 issue of The Investigator magazine, which was published by Jack Anderson. The District Court granted summary judgment for the defendants, Liberty Lobby, Inc. v. Anderson, 562 F.Supp. 201 (D.D.C.1983), and the plaintiffs now appeal. 2 The appeal presents issues regarding the asserted doctrine of a "libel-proof" plaintiff, i.e., one whose reputation has already been so damaged that further defamation can do no harm; the assertion that a pre-publication warning of falsity given by the plaintiff establishes the malice necessary to sustain judgment on behalf of a public-figure plaintiff; application of the "clear and convincing evidence" standard and the requirement of independent judicial determination of actual malice to a motion for summary judgment; and, of course, the merits consideration (under summary judgment standards) of whether the allegations were factual (as opposed to opinion), were defamatory, were false, and were made in good-faith reliance upon reputable sources.


Three stories published in the October 1981 issue of The Investigator are relevant to this lawsuit. The shortest of them, "America's Neo-Nazi Underground: Did Mein Kampf Spawn Yockey's Imperium, a Book Revived by Carto's Liberty Lobby?," was written by Jack Anderson and contained four of the thirty statements identified in the complaint as defamatory. That piece was an introduction to the two other articles: "Yockey: Profile of an American Hitler," telling the story of Francis Parker Yockey, a lawyer and author who took his own life in 1960, and "The Private World of Willis Carto," the source of the remainder of the statements identified as defamatory.

The "Yockey" and "Private World" articles were written by Charles Bermant, although the former appeared under the by-line of the magazine's staff writer Jon Obert, because Anderson did not like more than one piece attributed to a single author in any issue. Bermant joined Anderson's staff in March 1981, having previously worked in Anderson's office as an intern, but the story, according to the appellants, began much earlier. In November 1969, Joseph Trento and Joseph Spear published an article in True magazine entitled "How Nazi Nut Power Has Invaded Capitol Hill." 3 Carto and Liberty Lobby sued True, claiming that the article defamed them. The lawsuit ended with a settlement under which True paid Carto a sum of money and published a favorable article about Liberty Lobby. In May 1981, Spear was working for Anderson, now as the Managing Editor 4 of The Investigator. He assigned Bermant to investigate the Yockey and Carto stories and, plaintiffs claim, gave him drafts containing the statements

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made in the True article from which to work. Appellants' Brief at 29-30. Although the affidavit that Bermant filed with the district court does not list the Trento and Spear articles as a source, see Bermant Affidavit at paragraphs 8-17, the detailed appendix to the affidavit does identify it as a source, occasionally as the sole source, for some of Bermant's claims. See, e.g., Bermant Affidavit Appendix at 16-17.

Bermant conducted other research, which the district court characterized as "exhaustive" and "thorough[ ]." 562 F.Supp. at 206, 209. He reviewed the products of a Freedom of Information Act request, sought information about Carto and Yockey in libraries, and interviewed a number of people. One of his major sources was Robert Eringer, a freelance journalist; several of the allegedly defamatory statements were based solely on Eringer's claims. Bermant never met Eringer and his deposition recounts only one telephone conversation with him. Eringer sent Bermant a draft of an article containing some information about Liberty Lobby. That draft has since been lost, probably "thrown away." Bermant Deposition at 71-72. Eringer never identified any of his sources to Bermant, nor did Bermant inquire. Anderson testified that it did not matter to him whether Eringer was reliable, for "[w]e did not intend to use his material." Anderson Deposition at 51. Eringer, believed at the time of the proceedings below to live in London, was not deposed for this lawsuit. Another of Bermant's major sources was William Cox, an attorney representing a plaintiff who had sued an organization related to the appellants in the California courts. 5 Bermant interviewed Cox and also relied on the "Declaration of William Cox Regarding the Urgency of the Proceedings," a document apparently produced for the California lawsuit.

Bermant "spent ... several days" writing first drafts of the articles, which were then edited by Obert. Bermant Affidavit at p 17. There is evidence that several of the allegedly defamatory statements were added to the "Private World" article during the editing process. Bermant Deposition at 119. The Investigator 's art department produced several illustrations for the issue--two of which are also subjects of defamation claims.

Before the issue was published, William McGaw, editor of The Investigator, told the magazine's president that the articles were "terrible" and "ridiculous." He also viewed the illustrations and informed the art director that they "could be libelous." McGaw Affidavit at paragraphs 13, 17. Also before the issue was published, the appellants delivered written notification to the appellees of those statements they thought were defamatory, without apparent effect.

The articles, analyzed in detail in Parts IV and V of this opinion, convey the message that Carto is racist, fascist, anti-Semitic, and a neo-Nazi, and that Liberty Lobby was established to pursue his goals. The introductory article, written by Anderson over the by-line "The Editors," stated that upon Yockey's death Carto was able "to pick up the torch and fan it into a prairie fire." His strategy "[t]o capture political power" was "to put a benign face on his operation.... Thus Carto called his base organization Liberty Lobby." The "Private World" article was to the same effect. It asked, for example, such rhetorical questions as whether "Carto's opinions march goosesteps beyond the pale of responsible American conservatism?"; repeated such claims of others as the assertion that Carto was "the leading anti-Semite in the country"; and, in words and illustrations, noted that Carto physically resembled and emulated the mannerisms of Hitler.

Carto and Liberty Lobby filed suit on September 15, 1981, challenging two of the

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illustrations and twenty-eight statements contained in the articles, including some of the statements repeated above.


We turn first to arguments which both parties bring forward as a means of avoiding the difficult inquiry into the issues of falsity and malice. Appellees ask us to affirm the grant of summary judgment without further ado because the appellants are, on two theories, "libel-proof." First, they claim that the reputations of Liberty Lobby and Willis Carto have been irreparably strained by prior publications. Whether these prior publications are truthful is not relevant, they assert, because the tort of libel, which redresses injury to reputation, has no application when the plaintiff, for whatever reason, has a reputation that cannot be damaged.

We are not yet ready to adopt for the law of libel the principle that 10,000 repetitions are as good as the truth. We see nothing to be said for the rule that a conscious, malicious libel is not actionable so long as it has been preceded by earlier assertions of the same untruth. To begin with, we cannot envision how a court would go about determining that someone's reputation had already been "irreparably" damaged--i.e., that no new reader could be reached by the freshest libel. More important, however, no significant First Amendment values would be furthered by the rule appellees suggest, since, where a person has been widely libeled by reputable sources, the defendant's good faith reliance upon those sources provides, as we shall later discuss, a complete defense. Proving such good faith reliance (or actually, even less than that, merely preventing the plaintiff from proving the opposite by "clear and convincing evidence") is not such a burden that a prophylactic rule need be adopted sanctioning willful character-assassination so long as it is...

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