Price v. Viking Penguin, Inc., 88-5075

Citation881 F.2d 1426
Decision Date07 August 1989
Docket NumberNo. 88-5075,88-5075
Parties16 Media L. Rep. 2169 David PRICE, Appellant, v. VIKING PENGUIN, INC. and Peter Matthiessen, Appellees. William Styron, Kurt Vonnegut, John Irving, Alfred Kazin and Susan Sontag, AMICUS CURIAE.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Roger J. Magnuson, Minneapolis, Minn., for appellant.

Martin Garbus, New York City, for appellees.

Before HEANEY * and FAGG, Circuit Judges, and HENLEY, Senior Circuit Judge.

HEANEY, Senior Circuit Judge.

David Price, a special agent of the Federal Bureau of Investigation, was assigned to the Pine Ridge Reservation (Reservation) in South Dakota during the early 1970s. While on assignment on the Reservation, he played a role in investigating the Wounded Knee occupation and a shootout on the Reservation during which two F.B.I. agents were killed. Leonard Peltier, a member of the American Indian Movement (A.I.M.), was convicted of their killings. Peter Matthiessen, a well-known author, decided to write a book about these events, dividing the profits between himself, the publisher, a film company and the Leonard Peltier Defense Committee. The book, In the Spirit of Crazy Horse, is generally sympathetic to Indian views about these incidents and the treatment of Indians by the federal government. The author made a number of statements that Price considered defamatory. Price brought suit for defamation, intentional infliction of emotional distress, false light invasion of privacy, and prima facie tort. He seeks compensatory damages of $25,000,000, punitive damages, costs and fees. In light of the enormity of these claims, Viking withdrew the book from circulation.

Successive rulings by the district court narrowed the dispute to specific defamation claims. 1 The remaining claims involve twenty statements made in Crazy Horse and found in the appendix to this opinion. They are divisible into five categories: Price's relation to the perjury of Louis Moves Camp and involvement in seeing that criminal charges against him were dropped; misconduct regarding the testimony and affidavits of Myrtle Poor Bear; the withholding of information or gross negligence regarding the homicide investigation of Anna Mae Aquash; harassment of Indian people; and general statements about Price's character.

Both sides have engaged in extensive and acrimonious discovery surrounding the historical facts and the editorial process. Nearly four years after Price first brought his claims, and after legal costs of over one million dollars to the defendants, the district court finally dismissed the remaining defamation claims on constitutional grounds. Price v. Viking Penguin, Inc., 676 F.Supp. 1501 (D.Minn.1988). Price appeals the district court's judgment regarding his defamation claims and asks us to remand this case for trial by jury. We decline to do so. We begin by setting forth the applicable law.

I. FREEDOM OF SPEECH AND STATE DEFAMATION LAW
A. The First Amendment

Our founding fathers created a vibrant democracy, relying on virtually unregulated dissension and self-examination to provide our republic with stability and our citizens with satisfaction. In unqualified language applicable to the states, they allowed "no law * * * abridging the freedom of speech, or of the press * * *." U.S. Const. amend. I. This liberty, as much as any other, has given us our self-definition. It continues to favorably distinguish the United States from most societies in the world, and it is always the vehicle by which we appreciate the past and deliberate over our future. Though the claims raised in this appeal are particular, our review is influenced throughout by the place even this one dispute occupies in our nation's interest. Our most influential leaders have commented on the importance of the right, as well as on the proper role of judges in protecting it.

To reach sound conclusions on these matters, we must bear in mind why a state is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine * * * the remedy to be applied is more speech, not enforced silence.

Whitney v. California, 274 U.S. 357, 374-75, 47 S.Ct. 641, 647-48, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). Thomas Jefferson once admonished us: "We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors * * * these are safer corrections than the conscience of a judge." Id., n. 3 (quoting Beard's report in 123 The Nation 8 (1926)).

B. Political Speech and First Principles in Defamation Law

State defamation law limits free speech to protect an individual's reputational interests. As the Bill of Rights became applicable to the states, the first amendment became increasingly viewed as a limit on state defamation law. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), established the modern rule that, even when the defendant's remarks are both defamatory and false, where the remarks are directed at a public official and related to her official conduct, the plaintiff must also prove by clear and convincing evidence that the false remarks were made with actual malice or reckless disregard for the truth. Id. at 279-80, 84 S.Ct. at 725-26.

The motivating factor in the Court's analysis was protection for criticism of public officials and speech regarding issues of political concern. The New York Times standard was constructed in light of three truths about public speech. First, false statements would necessarily occur in the course of a vigorous public debate. Second, absent protection for even false statements, destructive self-censorship would result. Third, the legal standards for defamation must protect defendants from the self-censorship imposed by threats of litigation. Id. at 271-72, 278-79, 84 S.Ct. at 720-22, 724-26. The Court felt that debate on matters of public concern "should be uninhibited, robust, and wide-open, * * * [though] it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times, 376 U.S. at 270, 84 S.Ct. at 720. 2 The weaker state interest in the reputation of individuals has nevertheless been accommodated; where the plaintiff is not a public figure, a different balance is struck. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 106 S.Ct. 1558, 1563-64, 89 L.Ed.2d 783 (1986); Gertz v. Welch, 418 U.S. 323, 343-47, 94 S.Ct. 2997, 3008-10, 41 L.Ed.2d 789 (1974).

Supreme Court decisions have created two threshold issues: first, whether the plaintiff is a public figure, and second, whether the challenged statements are allegations of fact. We begin by considering the plaintiff's status, which determines the applicable law.

C. Price's Status

While Price has argued his case under the New York Times standard, he is reluctant to concede that he is a public figure for these purposes. Under the circumstances, however, we do not hesitate in agreeing with the district court that Price was a public figure and that the challenged statements relate to his official conduct. 676 F.Supp. at 1510-11.

Price occupied a prominent role in public affairs within the Reservation. He played a substantial role in the investigation of crimes on the Reservation, including the shoot-out. While he is by no means the principal character in the book or its focus, he was the object of public notoriety over these events, having been singled out for criticism by judges and others. In addition, news accounts and editorials about this event have appeared in a variety of forums and have discussed Price's conduct. See Defendants' Exhibits nos. 35-42, 62-64, 69, 95, 96, 116, 118 (Lincoln Nebraska Journal, New York Times, The Palm Beach Post, Minneapolis Star & Tribune, San Antonio Express, Sioux Falls Argus Leader, St. Paul Press & Dispatch, Aberdeen American News, Rapid City Journal, The Los Angeles Daily Journal, People, Twin Cities Reader, Newsweek, The Washington Star, and The Nation). Serious accusations about Price have been directly made in other books. See Weyler, Blood of the Land (Everest House 1982); Brand, The Life and Death of Anna Mae Aquash (Lorimer & Co. 1978). Serious questions about his conduct have been raised by many members of Congress. Congressional Correspondence to the President, Dec. 17, 1980 (Defendants' Exhibit no. 97).

The challenged statements from Crazy Horse all concern the discretionary performance of Price's duties. In context, criticism of the actions Price took in his official capacity reflect on the imperatives and conduct of the F.B.I. and the government generally, implicating the type of public debate at the core of the first amendment. We therefore apply the standards set forth in New York Times. See Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966) ("the public official designation applies at the very least to those * * * who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs."); Stevens v. Tillman, 855 F.2d 394 (7th Cir.1988) (school principal), cert. denied, --- U.S. ----, 109 S.Ct. 1339, 103 L.Ed.2d 809 (1989); Gray v. Udevitz, 656 F.2d 588 (10th Cir.1981) (police...

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