Desai v. Hersh

• Citation: 719 F. Supp. 670
• Decision Date: 14 July 1989
• Docket Number: No. 83 C 4232.,83 C 4232.
• Court: U.S. District Court — Northern District of Illinois
• Parties: Morarji DESAI, Plaintiff, v. Seymour M. HERSH, Defendant.

719 F. Supp. 670

Morarji DESAI, Plaintiff, v. Seymour M. HERSH, Defendant.

No. 83 C 4232.

United States District Court, N.D. Illinois, E.D.

July 5, 1989.

Nunc Pro Tunc May 30, 1989.

Supplemental Opinion July 14, 1989.

Tyrone C. Fahner, Daniel M. Harris, Mayer, Brown & Platt, U.S. Atty., Thomas P. Walsh, Asst. U.S. Atty., Robert Orman, Law Offices, Robert Orman, Cyriac D. Kappil, George M. Burditt, Malcolm A. Chandler, Robert G. Epsteen, Burditt Bowles & Radzius, Chicago, Ill., for plaintiff.

Donald G. Peterson, Schaffenegger, Watson & Peterson, Chicago, Ill., for Kroch's & Brentano's, Inc.

Michael Coffield, David L. Carden, Lee Ann Russo, Michael T. Trucco, Coffield, Ungarett, Harris & Slavin, Chicago, Ill., for defendant.

Bernard J. Nussbaum, Harold C. Hirshman, Sonnenschein, Carlin et al., Chicago, Ill., for Seymour Hersh.

AMENDED ORDER

NORGLE, District Judge.

Before the court is defendant's motion to dismiss Counts II, III and IV of plaintiff's four-count amended complaint, which seeks in the aggregate $185 Million in damages, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted in part and the remainder treated as a motion for summary judgment, with further briefing allowed.

FACTS

Plaintiff, Morarji Desai, is a citizen of India. In his own words, he has served India as a "judge, state official, member of Parliament, cabinet member, finance minister, deputy prime minister, and prime minister. Under Mahatma Ghandi, plaintiff was a leader in the passive resistance movement against British rule in India." Amended Complaint ¶ 2. In sum, plaintiff is a well-known political activist and public servant in India and, to a lesser extent, in the world at large.

Defendant, Seymour M. Hersh, is the author of The Price of Power: Kissinger in the Nixon White House (the "Book"). Initially, plaintiff also sued the publisher, Simon & Schuser, Inc., a corporate affiliate of the publisher, Summit Books, and a corporate officer, James Silberman. However, during the pendency of this motion, plaintiff voluntarily dismissed these parties, with prejudice, leaving Hersh as the sole remaining defendant. The Book concerns the foreign policy of the United States during the first term of the administration of President Richard M. Nixon, and, as indicated by its title, places a special emphasis on the actions of Secretary of State and National Security Advisor Henry Kissinger.

This action focuses on certain portions of the Book which, in the course of examining the conduct of the United States Central Intelligence Agency ("CIA") and its role in the formulation of U.S. foreign policy, state that the plaintiff, while an official in the government of India, sold Indian state secrets to the CIA. In the Book, it is also stated that plaintiff was fired from the post of deputy prime minister by Indira Ghandi in 1969.

Plaintiff's amended complaint alleges that these statements concerning the plaintiff are false and defamatory in that they either falsely impute to the plaintiff the commission of a crime under Indian law or falsely impute to the plaintiff an inability to perform or want of integrity in the discharge of the duties of his office. Plaintiff also alleges that defendant caused or permitted the Book to be published in India. Count I seeks recovery for intentional or reckless defamation of the plaintiff, under American law. Count II seeks recovery for negligent defamation, also under American law. Counts III and IV seek recovery for negligent defamation and defamation, respectively, based upon Indian law, for only those damages incurred in India. Memorandum In Support Of Amended Complaint ("Memo") at 2.

Defendant seeks dismissal of Count II on the grounds that, under American law, an action by a public figure for negligent defamation is constitutionally impermissible. Defendant moves to dismiss Counts III and IV on the grounds that the first amendment precludes application of Indian defamation law; that, even if the court were permitted to employ Indian defamation law, applicable choice of law rules require the court to utilize American defamation law; and that the "single publication rule" precludes application of the substantive law of two jurisdictions in a single civil action.

DISCUSSION

On a motion to dismiss, the allegations of the complaint, as well as the reasonable inferences to be drawn from them, are taken as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir.1986). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'ns No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir.1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transport Services, 795 F.2d 591, 594 (7th Cir.1986).

COUNT II

The court will first address Count II, which seeks to recover for negligent defamation under the law of whatever state applicable choice of law rules would require the court to employ. The essential elements of a libel action have, over time and numerous Supreme Court decisions, come to be dominated by first amendment considerations. "When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law." Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 1563, 89 L.Ed.2d 783 (1986).

Under New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, a public figure will be successful in prosecuting a defamation action only where, in addition to proving that the statement was untrue, defamatory and concerning the plaintiff, he provides convincingly clear proof that the defamatory falsehood was "made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80, 84 S.Ct. at 725-26; see Curtis Publishing Co. v. Butts, 388 U.S. 130, 162-65, 87 S.Ct. 1975, 1995-97, 18 L.Ed.2d 1094 (1967) (applying "actual malice" standard to public figures); Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 880, 99 L.Ed.2d 41 (1988).

Even a private figure plaintiff, where a matter of public concern is involved, must bear the burden of proving some fault on the part of the media defendant, Gertz v. Robert Welch, Inc., 418 U.S. 323, 325, 94 S.Ct. 2997, 3000, 41 L.Ed.2d 789 (1974), and the falsity of the statement in question, Hepps, 106 S.Ct. at 1563. Moreover, a private figure plaintiff must also prove "actual malice" if he seeks presumed or punitive damages. Gertz, 418 U.S. at 348-50, 94 S.Ct. at 3011-12. Only where the speech is exclusively of private concern and the plaintiff a private figure is the Constitution largely silent. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (focusing on public concern nature of speech, rather than media status of defendant).

In explaining the necessity of first amendment protections, the Supreme Court emphasized that "the maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the republic, is a fundamental principle of our constitutional system." New York Times, 376 U.S. at 269, 84 S.Ct. at 720, quoting Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Thus, whatever state common law may previously have required, the U.S. Supreme Court has concluded that the first amendment dictates the minimum contours of libel law.

Plaintiff is a public figure. Deposition of Morarji Desai taken May 22, 1984 at 81-94; see also Prager v. ABC, Inc., 569 F.Supp. 1229, 1232 (D.N.J.1983) (trial court determines status of defamation plaintiff). Though plaintiff has stipulated to this status, a brief discussion on this point will aid in the inquiry of first amendment applicability with respect to Counts III and IV. As a revolutionary and political official of the world's second most populous country, Desai has held himself out, and is known, to a varying extent throughout the world. See, e.g., Sharon v. Time, Inc., 599 F.Supp. 538, 563 (S.D.N.Y.1984) (former Israeli defense minister is public figure). Even if plaintiff may not be characterized as a public figure for all purposes, his actions have made him a public figure in the United States, at least for the limited purpose of commenting upon his relationships with the United States government and its officials while he was a public official of India. As such, plaintiff has the access to media channels which the Supreme Court found, in part, justified the "actual malice" standard. Gertz, 418 U.S. at 344, 94 S.Ct. at 3009. The mere passage of time since he has left his country's service does not change his status as a public figure. Plaintiff's own assertions of continued prominence preclude determining that he made "conscious efforts to regain anonymity." Wolston v. Readers Digest Ass'n, Inc., 443 U.S. 157, 172, 99 S.Ct. 2701, 2709-2710, 61 L.Ed.2d 450 (1979) (Blackmun, J., concurring).

While the status of the plaintiff is the primary determinant of the applicability of the "actual malice" standard, the Supreme...