750 F.2d 970 (D.C. Cir. 1984), 79-2265, Ollman v. Evans

Docket Nº:79-2265.
Citation:750 F.2d 970
Party Name:Bertell OLLMAN, Appellant v. Rowland EVANS, Robert Novak.
Case Date:December 06, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 970

750 F.2d 970 (D.C. Cir. 1984)

Bertell OLLMAN, Appellant

v.

Rowland EVANS, Robert Novak.

No. 79-2265.

United States Court of Appeals, District of Columbia Circuit

December 6, 1984

Page 971

[Copyrighted Material Omitted]

Reargued En Banc March 6, 1984.

As Amended .

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 brief, for appellant.

A. Daniel Feldman, Ronald A. Jacks, Steven R. Gilford, Daniel S. Hefter, Isham, Lincoln & Beale, Chicago, Ill., for appellees.

Before ROBINSON, Chief Judge, WRIGHT, TAMM, WILKEY, WALD, EDWARDS, GINSBURG, BORK, SCALIA and STARR, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge STARR.

Concurring opinion filed by Circuit Judge BORK, with whom Circuit Judges WILKEY, GINSBURG and Senior Circuit Judge MacKINNON join.

Concurring opinion filed by Senior Circuit Judge MacKINNON.

Opinion dissenting in part, filed by Chief Judge SPOTTSWOOD W. ROBINSON, III, with whom Circuit Judge J. SKELLY WRIGHT joins.

Opinion dissenting in part filed by Circuit Judge WALD, with whom Circuit Judges HARRY T. EDWARDS and SCALIA join.

Statement concurring in part and dissenting in part filed by Circuit Judge HARRY T. EDWARDS.

Opinion dissenting in part filed by Circuit Judge SCALIA, with whom Circuit Judges WALD and HARRY T. EDWARDS join.

STARR, Circuit Judge:

This defamation action arises out of the publication of a syndicated column by Rowland Evans and Robert Novak in May 1978. The question before us is whether the allegedly defamatory statements set forth in the column are constitutionally protected expressions of opinion or, as appellant contends, actionable assertions of fact. We conclude, as did the District Court, that the challenged statements are entitled to absolute First Amendment protection as expressions of opinion.

I

Rowland Evans and Robert Novak are nationally syndicated columnists whose columns appear regularly in newspapers across the country. According to the complaint in this case, which was filed by plaintiff Bertell Ollman on February 15, 1979, an Evans and Novak column appeared on or about May 4, 1978 in The Washington Post and other newspapers across the Nation. Complaint p 5. Attached to the complaint as Exhibit A was a photocopy of the column, styled "The Marxist Professor's Intentions," as it appeared in The Washington Post on May 4, 1978. A copy of that column is reproduced as an Appendix to this opinion.

The plaintiff, Bertell Ollman, is a professor of political science at New York University.

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The complaint averred that Mr. Ollman "is widely esteemed among his colleagues and enjoys the highest possible reputation as a scholar of integrity and a teacher." Complaint p 2. In March 1978, Mr. Ollman was nominated by a departmental search committee to head the Department of Government and Politics at the University of Maryland. The committee's recommendation "was duly approved by the Provost of the University and the Chancellor of the College Park campus." Id. p 4.

With this professional move from Washington Square to College Park, Maryland thus in the offing, the Evans and Novak article appeared. Since the years of litigation that have followed revolve entirely around this single column, we will begin by describing its contents in some detail. In our description, we will highlight the specific portions that Mr. Ollman assails as false and defamatory. The column begins as follows:

What is in danger of becoming a frivolous public debate over the appointment of a Marxist to head the University of Maryland's department of politics and government has so far ignored this unspoken concern within the academic community: the avowed desire of many political activists to use higher education for indoctrination.

The column immediately goes on to state that:

[t]he proposal to name Bertell Ollman, Professor at New York University, as department head has generated wrong-headed debate. Politicians who jumped in to oppose Ollman simply for his Marxist philosophy have received a justifiable going-over from defenders of academic freedom in the press and the university. Academic Prince Valiants seem arrayed against McCarythite [sic] know-nothings.

With these opening two paragraphs as lead-in, the authors then pose what they deemed the pivotal issue in the debate: "But neither side approaches the crucial 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." (Emphasis added).

The columnists thus, in the first three paragraphs, articulated a view of what should be the central question in what they viewed as a fruitless debate. The authors then go on in the next paragraph to state: "To protect academic freedom, that question should be posed not by politicians but by professors. But professors throughout the country troubled by the nomination, clearly a minority, dare not say a word in today's campus climate."

With this observation, the authors turn in the following six paragraphs to a discussion of Mr. Ollman and his writings. Evans and Novak state 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. Amid the increasingly popular Marxist movement in university life, he is distinct from philosophical Marxists. Rather, he is an outspoken proponent of 'political Marxism.' " (Emphasis added).

The authors next relate Mr. Ollman's two unsuccessful efforts to win election to membership on the council of the American Political Science Association. In these elections, the column states (and appellant does not dispute) that Professor Ollman ran as a candidate of the Caucus for a New Political Science and finished last out of sixteen candidates each time. "Whether or not that represents a professional judgment by his colleagues, as some critics contend, the verdict clearly rejected his campaign pledge: 'If elected ... I shall use every means at my disposal to promote the study of Marxism and Marxist approaches to politics throughout the profession.' "

Evans and Novak then direct the four ensuing paragraphs of the column to a summary of an article by Mr. Ollman, entitled "On Teaching Marxism and Building

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the Movement" in the Winter 1978 issue of New Political Science. Record ("R.") 3. In this article, Mr. Ollman claims that most students conclude his political science course with a " 'Marxist outlook.' " The authors go on:

Ollman concedes that will be seen "as an admission that the purpose of my course is to convert students to socialism."

That bothers him not at all because "a correct understanding of Marxism (as indeed of any body of scientific truths) leads automatically to its acceptance." * * * The "classroom" is a place where the students' bourgeois ideology is being dismantled. "Our prior task" before the revolution, he writes, "is to make more revolutionaries." 1

Moving to a brief discussion of Mr. Ollman's principal work, Alienation: Marx's Conception of Man in Capitalist Society, the authors described the work as "a ponderous tome in adoration of the master (Marxism 'is like a magnificiently rich tapestry'). Published in 1971, it does not abandon hope for the revolution forecast by Karl Marx in 1848." This brings the columnists to the last statement specifically identified in the complaint as defamatory:

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. Would he say that publicly? "No chance of it. Our academic culture does not permit the raising of such questions." (Emphasis added).

Evans and Novak then bring the column to a close, indicating in the penultimate paragraph that " '[s]uch questions' would include these: 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?"

In the column's final paragraph, the authors return to their opening theme that "such questions" as set forth in the previous paragraph should not be raised by politicians, even if, as the anonymous political scientist claimed, they cannot be raised within the Academy. They conclude the column by calling upon academics to address these questions:

Here are the makings of a crisis that, to protect its integrity and true academic freedom, academia itself must resolve.

On May 19, 1978, Mr. Ollman's lawyer wrote to Evans and Novak demanding retraction of the allegedly defamatory statements in the column. Letter of I. Silver to R. Evans and R. Novak (May 19, 1978). R. 1. This Evans and Novak refused to do. On May 8, however, only four days after the Evans and Novak column appeared, The Washington Post published a letter from Mr. Ollman. In this letter, Professor Ollman rejected the allegation that he used the classroom to indoctrinate students and set the column's quotations from his writings in what he viewed as their proper context. Letter from B. Ollman to the Editors of The Washington Post (May 8, 1978). R. 3.

The...

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