Carto v. Buckley

• Decision Date: 25 November 1986
• Docket Number: No. 84 Civ. 1812 (RJW).,84 Civ. 1812 (RJW).
• Citation: 649 F. Supp. 502
• Parties: Willis A. CARTO and Liberty Lobby, Inc., Plaintiffs, v. William F. BUCKLEY, Jr. and Doubleday & Company, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

649 F. Supp. 502

Willis A. CARTO and Liberty Lobby, Inc., Plaintiffs, v. William F. BUCKLEY, Jr. and Doubleday & Company, Inc., Defendants.

No. 84 Civ. 1812 (RJW).

United States District Court, S.D. New York.

November 25, 1986.

COPYRIGHT MATERIAL OMITTED

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

Satterlee & Stephens, New York City, for defendants; Robert M. Callagy, of counsel.

OPINION

ROBERT J. WARD, District Judge.

Plaintiffs Willis A. Carto and Liberty Lobby, Inc. ("Liberty Lobby") commenced this diversity action against defendants William F. Buckley, Jr. and Doubleday & Company, Inc. ("Doubleday") to recover damages for the publication in 1983 of a book that contained allegedly libelous statements. The defendants now move to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., or, alternatively, for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons that follow, the court grants defendants' motion for summary judgment.

BACKGROUND

In 1983, Doubleday published a book written by Buckley entitled Overdrive: A Personal Documentary. The book contained the following paragraph:

A note from Howard Hunt. He lodged a libel suit several years ago against The Spotlight, a publication of the Liberty Lobby, of which a principal figure is Willis Carto. The Spotlight's distinctive feature is racial and religious bigotry. Howard writes, "So far Carto has avoided deposition by staying on the West Coast, allegedly; this delays my libel suit's progress." He says he has heard from Carto's lawyer that "Willis Carto ... is by coincidence a target of yours." More exactly, it is the other way around, Carto having attacked me and National Review for years, presumably upon learning that we thought the Protocols of the Learned Elders of Zion a forgery. We were finally ourselves forced to sue Carto (or, more exactly, countersue), and the stuff (depositions, motions) is in the hands of the judge — the slowest judge in history. (A few weeks later, Howard called me in high exultation to say that the jury had awarded him a judgment of six hundred and fifty thousand dollars. The Spotlight had alleged about Hunt, among other jocularities, that he would probably be implicated in the assassination of John Kennedy.)

W.F. Buckley, Jr., Overdrive: A Personal Documentary 57-58 (1983).

Liberty Lobby, an incorporated not-for-profit lobbying organization that publishes the weekly paper Spotlight, contends that the sentence "The Spotlight's distinctive feature is racial and religious bigotry" defamed it. Carto, the founder of Liberty Lobby, similarly contends that the phrase "... Carto having attacked me Buckley and `National Review' for years, presumably upon learning that we thought the Protocols of the Learned Elders of Zion a forgery" likewise defamed him. On October 6, 1983, the plaintiffs, through their counsel, demanded in writing that the defendants retract the allegedly defamatory statements. The defendants refused to do so.

On March 14, 1984, the plaintiffs filed this libel action requesting both compensatory and punitive damages. The complaint charges that in making the statements referred to above

the defendants intended to and did convey the claim and impression that the plaintiffs Willis A. Carto and Liberty Lobby, Inc. give credence to the so-called Protocols of the Learned Elders of Zion, which are in fact a monstrous anti-Semitic forgery, and therefore the defendants intended to and did convey the claim and impression that the plaintiffs Willis A. Carto and Liberty Lobby, Inc., support and advocate anti-Semitism of the most ugly sort.

Complaint at ¶ 11. Defendants now move to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., or, alternatively, for summary judgment pursuant to Rule 56, Fed.R.Civ.P., contending first that the passages at issue qualify as constitutionally protected opinion, and second that the plaintiffs cannot establish by clear and convincing evidence that the defendants published the statements with knowledge of falsity or reckless disregard of the truth.

DISCUSSION

Because it has examined matters outside the pleadings, the Court will consider the present motion as one for summary judgment. A Court may grant the extraordinary remedy of summary judgment only when it is clear both that no genuine issue of material fact remains to be resolved at trial and that the movant is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. In deciding the motion, the Court is not to resolve disputed issues of fact, but rather, while resolving ambiguities and drawing reasonable inferences against the moving party, to assess whether material factual issues remain for the trier of fact. Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11, No. 86-7294, (2d Cir.1986) (citing Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986)). While the party seeking summary judgment bears the burden of demonstrating the lack of material factual issues in dispute, Schering Corp. v. Home Insurance Co., 712 F.2d 4, 9 (2d Cir.1983), "the mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985) (per curiam).

While the movant faces a difficult burden to succeed, motions for summary judgment, properly employed, permit a Court to terminate frivolous claims and to concentrate its resources on meritorious litigation. Knight v. U.S. Fire Insurance, supra, at 12. The motion then

is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed.Rule Civ.Proc. 1.... Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of person opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986).

I. Defamation and the First Amendment

Although states create statutory or common law causes of action for defamation,¹ the First Amendment of the Constitution, which the Fourteenth Amendment makes applicable to the states, Murdock v. Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292 (1942), delimits a state's power to award damages for libel, New York Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 710, 727, 11 L.Ed.2d 686 (1964).

An analysis of allegedly libelous statements then must be conducted with full cognizance of the value represented by the First Amendment and the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks." Id. at 270, 84 S.Ct. at 720.

Indefeasible protection of opinion facilitates the free flow of ideas. "Erroneous opinions are inevitably put forward in free debate but even the erroneous opinion must be protected so that debate on public issues may remain robust and unfettered and concerned individuals may have the necessary freedom to speak their conscience." Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 379, 366 N.E.2d 1299, 1306, 397 N.Y.S.2d 943, 950, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). As the Supreme Court observed in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974), "under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." The Second Circuit has noted the Constitution's "bias toward unfettered speech at the expense, perhaps of compensation for harm to reputation" in situations involving public figures and topics of public interest which significantly affect political discourse. Buckley v. Littell, 539 F.2d 882, 889 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 777 (1977).

The Supreme Court has long recognized the unique nature of political and religious speech.

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement.

New York Times v. Sullivan, supra, 376 U.S. at 271, 84 S.Ct. at 721, (quoting Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940)). The Second Circuit has found that significant safeguards are necessary to preserve the freedoms guaranteed by the First Amendment.

These strict tests may sometimes yield harsh results. Individuals who are defamed may be left without compensation. But excessive self-censorship by publishing houses would be a more dangerous evil. Protection and encouragement of writing and publishing, however controversial, is of prime importance to the enjoyment of first amendment freedoms. Any risk that full and vigorous exposition and expression of opinion on matters of public interest may be stifled must be given great weight. In areas of doubt and conflicting considerations, it is thought better to err on the side of free speech.

Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.), cert. denied sub. nom, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977).

The nature of an allegedly libelous statement as opinion or fact then is clearly crucial. Opinions, however rude,...