Airlie Foundation, Inc. v. Evening Star Newspaper Co.

• Decision Date: 20 January 1972
• Docket Number: Civ. A. No. 2277-68.
• Citation: 337 F. Supp. 421
• Parties: AIRLIE FOUNDATION, INC., and Murdock Head, Plaintiffs, v. The EVENING STAR NEWSPAPER COMPANY, Defendant.
• Court: U.S. District Court — District of Columbia

337 F. Supp. 421

AIRLIE FOUNDATION, INC., and Murdock Head, Plaintiffs, v. The EVENING STAR NEWSPAPER COMPANY, Defendant.

Civ. A. No. 2277-68.

United States District Court, District of Columbia.

January 20, 1972.

David N. Webster, Washington, D. C., for plaintiffs.

Francis L. Casey, Jr., Washington, D. C., for defendant.

MEMORANDUM OPINION AND ORDER

GASCH, District Judge.

This matter came on for consideration of defendant's post-trial motions for judgment n. o. v or in the alternative for a new trial. In accordance with established procedure, defendant made a timely motion for directed verdict upon which ruling was reserved. The matter has been extensively briefed and fully argued in open Court.

I. FACTS.

Material facts as to which there is no dispute are set forth in the pretrial order. Plaintiff Airlie Foundation, Inc., operates a conference center in Fauquier County, Virginia, which is used for meetings by organizations with a wide variety of important interests. In addition, it has produced and distributed documentary motion pictures on such subjects as ecology and medicine. The individual plaintiff, Murdock Head, is a lawyer, physician, a member of the faculty of George Washington University and is the founder and principal guiding force in the operation of Airlie Foundation.

On September 14, 1967, Robert Walters, a reporter for the defendant Evening Star newspaper, with a few other reporters, attended a press conference at the home of William Higgs, at which each representative of the media was given a prepared sixteen-page statement. Mr. Higgs then discussed his press release with the newsmen. On September 14th, in its last edition, and on September 15th, in all four editions, the Star published articles relating to the Higgs press conference. Following an examination of Airlie Foundation's books by another Star reporter and the editor of the Star, a retraction of the charges against Airlie was published in the Star in two editions on both September 18th and 19th. The individual and corporate plaintiffs subsequently brought a libel action against the Star, and the jury returned verdicts of $100,000 and $419,800 compensatory and no punitive damages for the individual and corporate plaintiffs respectively.

The subject matter of the articles related to charges by Higgs that after an investigation conducted by himself and some of his associates he had concluded that Airlie Foundation was secretly financed and supported by agencies of the United States government, including the Pentagon, State Department, and Central Intelligence Agency. It is upon this charge and the underlying factual details upon which Higgs based his charges, as reported more extensively by the Star, that plaintiffs predicate their suit for libel.¹ Counsel concede that plaintiffs are "public figures" as that term has been defined by cases following New York Times v. Sullivan.² Clearly, the Rosenbloom case³ extends the Times rule to this case, and the litigation has proceeded under that standard.

II. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

In ruling on a motion for directed verdict or for judgment n. o. v. by a defendant, the Court must consider whether the plaintiff has presented substantial evidence upon which the jury might reasonably and legally reach a verdict on the non-moving party's behalf.⁴ Defendant's position in its motion is that the state of the evidence would not permit a reasonable jury to reach a finding of malice within the meaning of the New York Times case and its progeny. The Court understands the Star's basic contention to be that it did no more than publish a substantially accurate account of charges which were not obviously false made at a press conference on a matter of public interest by a person who was an apparently reliable source⁵ and that this conduct falls within the protection afforded by cases such as Greenbelt Cooperative Publishing Ass'n v. Bresler⁶ and Time, Inc. v. Pape.⁷

To begin with, in the Greenbelt case the Supreme Court concluded that the words complained of were not slander when spoken and noted that it was undisputed that the subsequent newspaper article fairly and accurately dealt with the circumstances in which the charges were made. In this case plaintiffs vigorously contend that the Star's articles contained facts not raised at the press conference and thus were not a substantially accurate account of the Higgs charges.

Time, Inc. v. Pape, as both counsel appeared to recognize, more closely parallels the present suit. In Time, Inc., the complaint was that the Time article, in reporting and summarizing a report prepared by the United States Civil Rights Commission deleted the word "alleged" when commenting on charges made in a civil complaint filed by one who claimed to be the victim of police misconduct. Thus, Pape contended, the article made it appear that both the national commission and Time proffered the charges as truth when in fact they were merely allegations of a complaint. After a number of hearings at the trial and appellate level, the Supreme Court ultimately upheld the trial court's grant of a directed verdict for Time. Noting the difficulties which confront the publisher of a statement made by someone else, as opposed to, for example, an investigative reporter's account of an event, the Court concluded that the Time story was a "rational interpretaton of a document that bristled with ambiguities."⁸

Plaintiffs contend that the Time, Inc. case is inapposite here for two reasons. First, they maintain that the entire series of stories printed by the Star, which appeared in three versions, contain several affirmative representations which do not find their source in the Higgs press conference but rather from independent investigation and comment by the Star. They assert that some of these additional details are false and that all were added by the Star to lend credence and support to the Higgs' charges. Thus plaintiffs contend that the Star has exceeded any protection afforded by Greenbelt and Time, Inc., because the stories were no longer merely an account of the Higgs press conference.⁹

Second, plaintiffs contend that this case differs from Time, Inc., in another crucial respect. In Time, Inc., the reporter and researcher testified that they were well aware of the meaning of the word "alleged" but that their omission of that word, given the entire content and thrust of the Commission's report, was not a falsification of what they believed to be the Commission's position concerning the Pape incident.

Plaintiffs assert that in this case the Star had information in its possession which caused it to disbelieve or at least entertain serious doubts about the Higgs charges. They point to testimony by Mr. Newbold Noyes, Editor-in-Chief of the Evening Star, that on Thursday evening, after the Star's first publication of the story, he had called a personal friend at the CIA regarding the charges. Mr. Noyes testified he believed he was speaking to Mr. Richard Helms, the director of the agency, was told by Mr. Helms, on a personal basis, that there was no truth to the story, and that he believed him at the time. The exchange was as follows:

Q: On September 14, 1967, in the evning (sic), Thursday evening, did you call the head of the CIA?

A: I think I did.

Q: And, was that Richard Helms?

A: Yes, if I called him.

Q: Did he tell you that there was no truth to the charge that the CIA had been funding Airlie House?

A: Yes.

Q: And, did you believe him at the time?

A: Yes.¹⁰

According to Mr. Noyes, this conversation left him "considerably shaken as to my original impression as to the validity of Mr. Higgs' charges."¹¹

The defendant argues in response that under the circumstances as they were known at the time the first story went to press on Thursday, the decision to publish was reasonable, that upon receiving Helms' denial, which admittedly cast doubt upon the story, the Star could not simply drop its coverage, and that its decision to publish the following day, this time focusing on Dr. Head's denials, was the only reasonable course open to it.

Without more, this contention might have merit. In the course of publishing a series of articles concerning "hot news" prepared under deadline pressure, it is highly likely that additional information will come to light or events will occur which will significantly affect the underlying story or present the situation from a different perspective. The publisher will inevitably be faced with difficult choices when confronted with further developments in the story. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 55, 91 S.Ct. 1811, 29 L.Ed.2d 296, (1971). But in this case the Star did more than merely attempt to extricate itself from a position as to which it appeared to have reservations after Mr. Noyes' call to the CIA official. Although the stories which appeared the following day highlighted plaintiff Head's denials,¹² it is undisputed that several details were included which did not appear in the earlier, pre-phone call story on Thursday.

The most significant of these details was the Star's treatment of the government's reaction to the story. The Thursday article stated that "a government source" denied the story. Notwithstanding the subsequent denial which Mr. Noyes received from his personal friend at the CIA, the Friday stories contained the statement "the CIA declined to comment on the charges, but government sources said the charges ... were untrue." Viewed objectively this treatment portrayed the existing situation in an extremely misleading fashion. When questioned about the articles' affirmative representations that the CIA declined to comment, the Star reporter admitted that this was an untruth and was known to him to be untrue when he wrote it.¹³

The first two editions on Friday also contained statements concerning the financial status of Airlie Foundation, information which was not contained in either the...