Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 86-7017

• Citation: 838 F.2d 1287,267 U.S. App. D.C. 337
• Decision Date: 05 February 1988
• Docket Number: No. 86-7017,86-7017
• Parties: , 56 USLW 2483, 14 Media L. Rep. 2249 LIBERTY LOBBY, INC., Appellant, v. DOW JONES & COMPANY, INC., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1287

838 F.2d 1287

267 U.S.App.D.C. 337, 56 USLW 2483,

14 Media L. Rep. 2249

LIBERTY LOBBY, INC., Appellant, v. DOW JONES & COMPANY, INC., et al.

No. 86-7017.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 8, 1987.

Decided Feb. 5, 1988.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-03455).

Mark Lane, Washington, D.C., for appellant.

Robert P. LoBue, New York City, for appellees.

Before EDWARDS, BORK, and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

This is a libel action in which Liberty Lobby, Inc., a citizens' group, seeks fifty million dollars in compensatory and punitive damages from the publisher of The Wall Street Journal. After more than a year of discovery, the district court granted defendants' motion for summary judgment on the first count, and judgment on the pleadings as to the remaining four counts of Liberty Lobby's complaint. We affirm the district court's disposition of the case in all respects, although we sometimes follow a different route to the same result.

I.

On September 28, 1984, The Wall Street Journal published a column entitled "Controversial Publisher--Racial Purist Uses Reagan Plug." Appendix to Complaint, E.N. 1 (filed Nov. 15, 1984) [hereinafter "Complaint"]; ¹ Wall St. J., Sept. 28, 1984, at 56, col. 1. The article, written by defendant Rich Jaroslovsky, a ten-year veteran of The Journal 's news staff, bore the logo "Politics 84," and was published as part of The Journal 's coverage of the 1984 presidential campaign. The article is reprinted in its entirety as Appendix A to this opinion. The article states that one Roger Pearson, an advocate of racial betterment through genetic selection, had received a letter of commendation from President Reagan and that he had exploited the letter to promote his controversial publications. According to the story, the letter was composed by a Pearson associate on the White House staff, and President Reagan had never met Mr. Pearson. Jaroslovsky concluded that the incident demonstrated "how a highly ideological presidency--conservative or liberal--can be used by well-connected outside activities to gain respectability."

In the course of discussing Pearson's past activities and associations, the article asserted:

Other Pearson writings appeared in Western Destiny, a magazine published by the far right, anti-Semitic Liberty Lobby. Mr. Pearson edited Western Destiny briefly in the mid-1960s and wrote several books on race and eugenics that were issued by Liberty Lobby's publishing arm. These pamphlets are still App. A, infra, p. 1304.

sold by the National Socialist White People's Party, the Arlington, Va. based American Nazi group; Mr. Pearson says he doesn't have any connection with that group.

On November 15, 1984, Liberty Lobby filed a complaint for libel in the United States District Court for the District of Columbia, basing jurisdiction on diversity of citizenship under 28 U.S.C. Sec. 1332 (1982). Complaint p 1. Named as defendants were Dow Jones & Co., Inc., the company that publishes The Journal, and Rich Jaroslovsky, the author of the Pearson article. Id. paragraphs 2-3.

Liberty Lobby claims that the quoted passage is false and defamatory in two respects. First, although Liberty Lobby admits to being an anti-Zionist organization, it claims that The Journal 's characterization of it as "anti-Semitic" is false and injurious to its reputation. Complaint p 10. Second, Liberty Lobby contends that it never published the magazine, Western Destiny; nor did it issue any books by Mr. Pearson. Id. It further contends that no books or pamphlets issued by Liberty Lobby are or were sold by the National Socialist White People's Party. Id.

In November, 1985, after eleven months of voluminous discovery had been completed, Liberty Lobby sought and was granted leave to amend its complaint to add four additional causes of action for libel against Dow Jones. See Motion for Leave to Amend and Supplement the Complaint, E.N. 46 (filed Nov. 1, 1985). These claims were based upon a column entitled "There's Nothing Like a Libel Trial for an Education" which appeared in the editorial section of The Wall Street Journal on October 11, 1985. Id. exh. B; Wall St. J., Oct. 11, 1985, at 28, col. 3. The column was written by Ms. Suzanne Garment, a member of The Journal's editorial staff, and is reprinted in its entirety as Appendix B to this opinion.

Using as a vehicle the trial of another libel action, one between Liberty Lobby and The National Review, a magazine of opinion, the column gave the author's views "about libel suits in general and their place in democratic politics." In introducing its theme, the Garment column noted that Liberty Lobby's claim based on the Jaroslovsky article was at that time pending before the district court, stating:

Over the years, Liberty Lobby and Mr. Carto have sued a number of publishers that called them racist and anti-Semitic. Still pending is a Liberty Lobby suit against The Wall Street Journal, which last year called Liberty Lobby "anti-Semitic" and reported that it had published various tracts by a promoter of racial betterment through genetic selection.

App. B, infra, at 1305. This republication of allegedly defamatory material from the Jaroslovsky story forms the basis for Liberty Lobby's second cause of action.

The body of the Garment column discussed Liberty Lobby's trial strategy in defending a counterclaim for libel brought against it by The National Review. The column described in detail the courtroom scene prior to the delivery of opening arguments to the jury. It noted the presence of "a good-looking black female lawyer" at Liberty Lobby's counsel table with Mr. Lane, the lead counsel, and went on to state, "[t]he moment the jury filed in--all black, as is not uncommon in the District--you began to suspect that Mr. Lane might have something in mind." The column then summarized Liberty Lobby's opening argument to the jury, at one point quoting Mr. Lane as saying:

If you read the words of Adolf Hitler regarding superior races and advanced races and inferior races, you will have difficulty separating the words of Mr. Buckley in his editorials in the National Review from the words of Adolf Hitler.

App. B, infra, p. 1306. The column summed up its discussion of Liberty Lobby's trial strategy by stating:

So we see the Liberty Lobby standing up in court and calling Mr. Buckley racist, most likely calculating that black jurors will be too hypnotized by this possibility to consider other facts important. This is not just an ordinary lawyer's trick. This is breathtaking in its daring.

Most of us would be embarrassed to appeal to a racial or religious minority audience so crudely. We know the Fair Play Patrol would at once swoop down and cart us away. But the Carto team is of sterner stuff, able to put its head down and go for broke.

Id. at 1306.

The column questioned the utility of highly inflammatory libel suits in a democratic society, and compared "Louis Farrakhan wowing them at Madison Square Garden" to "Mark Lane in front of the jury." The statements in the Garment column concerning Liberty Lobby's conduct during The National Review trial form the basis for its third, fourth and fifth causes of action for libel against Dow Jones.

On December 16, 1985, appellees filed a motion for summary judgment on the first cause of action based on the Jaroslovsky article, and for judgment on the pleadings as to the four claims based on the Garment column. Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment and Judgment on the Pleadings, E.N. 57 (filed Dec. 16, 1985).

On July 10, 1986, the district court issued its memorandum opinion and order, granting appellees' motions and dismissing Liberty Lobby's complaint with prejudice. See Liberty Lobby, Inc. v. Dow Jones & Co., 638 F.Supp. 1149 (D.D.C.1986). The district court found that the truth or falsity of The Journal's statements concerning Liberty Lobby's publishing activities was "immaterial," for, even if false, they were not "defamatory in the least of Liberty Lobby but for the ... characterization of the entire conglomerate as 'anti-Semitic.' " Id. at 1152. On the latter score, the district court "suspect[ed] ... that the term 'anti-Semitic,' as Jaroslovsky has used it, is probably constitutionally protected opinion." Id. (citing Ollman v. Evans, 750 F.2d 970, 974-84 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985)). However, the district court went on to hold that, to the extent the charge of anti-Semitism had any objectively verifiable factual content, the statement was substantially true. Id. Relying upon the contents of a multivolume file Liberty Lobby kept on publications about Jews ² and upon the views expounded in Liberty Lobby's official organ, The Spotlight, the district court found that appellees' "evidence of Liberty Lobby's institutional anti-Semitism in its most malign sense" was "compelling." Id. With only the bald denial of the affidavit of Willis Carto, Liberty Lobby's founder and chief executive officer, weighing against appellees' evidence, the district court concluded that no reasonable jury could find by a preponderance of the evidence that the ascription of anti-Semitism to Liberty Lobby was false. Id. at 1153.

The district court also found that dismissal of Liberty Lobby's claims based on the Jaroslovsky article was mandated by the complete lack of evidence that any of the allegedly defamatory statements were published with actual malice. The court noted that Jaroslovsky had spent three months on intermittent research, had reviewed a large number of Liberty Lobby documents, and had consulted various articles about Liberty Lobby. Jaroslovsky had shown these materials to his editor, who concurred in his judgment that...