Liberty Lobby, Inc. v. Dow Jones & Co., Inc.

• Decision Date: 10 July 1986
• Docket Number: Civ. A. No. 84-3455.
• Court: U.S. District Court — District of Columbia
• Parties: LIBERTY LOBBY, INC., Plaintiff, v. DOW JONES & COMPANY, INC., et al., Defendants.

638 F. Supp. 1149

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

Civ. A. No. 84-3455.

United States District Court, District of Columbia.

July 10, 1986.

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

Robert P. LoBue, Patterson, Belknap, Webb & Tyler, New York City, for defendants.

MEMORANDUM AND ORDER

JACKSON, District Judge.

Plaintiff Liberty Lobby, Inc., an organization engaged in the espousal of causes, charges defendant Dow Jones & Company, Inc., publisher of The Wall Street Journal ("The Journal"), with libel.¹ Specifically, it alleges that The Journal published two defamatory articles, the first, a 1984 report by co-defendant Rich Jaroslovsky describing Liberty Lobby as "far right ... and anti-Semitic," and the second, a 1985 column by nondefendant Suzanne Garment describing in-court proceedings in an earlier suit by Liberty Lobby against another publication.² This case is presently before the Court on defendants' post-discovery motion for summary judgment/judgment on the pleadings. The Court finds the case to be governed by both settled law and a trilogy of cases recently decided by the Supreme Court this term and, for the reasons set forth below, will grant defendants' motion in its entirety and dismiss the complaint with prejudice.

I.

In September, 1984, The Journal published a news report by Jaroslovsky which formed the initial basis for this action. Appearing under the headline, "Racial Purist Uses Reagan Plug," the article describes how one Roger Pearson allegedly parlayed a letter of commendation from President Reagan to promote his own publications. As part of its exposition of Pearson's past, the story stated:

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 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.

Wall St.J., Sept. 28, 1984, at 56, col. 1. In its "first cause of action" (hereinafter Count I), Liberty Lobby maintains that it never "published" Western Destiny, nor did its avowed "publishing arm" ever "issue" books by Pearson; that none of its publications was ever sold by the National Socialist White People's Party; and that it is not "anti-Semitic," although it is willing to admit to being anti-Zionist.

Following a change of counsel, Liberty Lobby amended its complaint to assert four additional "causes of action" (hereinafter Counts II-V), each corresponding to an allegedly libelous section of an October, 1985, column by Garment. See Garment, There's Nothing Like a Libel Trial For an Education, Wall St.J., Oct. 11, 1985, at 28, col. 3.³

Count II alleges a republication of the defamation asserted in Count I by the following sentence: "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."

Count III concerns the following passage in Garment's column:

Across the room with Mr. Willis Carto Liberty Lobby's founder and chief executive were the bearded Mr. Mark Lane attorney for Liberty Lobby in friendly navy blazer and gray slacks, a young female paralegal with the kind of nose that suggests the presence of a trust fund, and a young, good-looking black female lawyer in a high-collared blouse. The moment the jury filed in — all black, as is not uncommon in the District of Columbia — you began to suspect that Mr. Lane might have something in mind.

Count IV complains of the following:

So we see the Liberty Lobby standing up in court and calling Mr. William F. Buckley publisher and editor of The National Review 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.

Count V, the final "cause of action," concerns a paragraph which reads:

It gets you thinking about libel suits in general and their place in democratic politics. They are in vogue now, especially as a way to fight the press. Without a doubt current journalistic habits deserve some fighting against. Still, these suits attacking pernicious speech generate their own share of pernicious speech. Trials held to fight destructive ugliness in American public life provide their own arena in which the parties can make ugly appeals. Highly public events like a blazing newspaper headline, or Louis Farrakhan wowing them at Madison Square Garden, can be a grim sight. But believe me, Mark Lane in front of the jury also generates a distinct shiver.

II.

Defendants contend that the record they have amassed in the course of discovery here demonstrates conclusively that each and every statement in the Jaroslovsky article is either true or a non-actionable opinion, and that Jaroslovsky and The Journal have shown that they published without the "actual malice" required as a predicate to their liability. Thus, summary judgment is in order on Count I. The Garment column, says The Journal, is unmistakeably opinion/commentary on its face and may claim First Amendment sanctuary, entitling it to judgment on the pleadings on Counts II-V.

Those aspects of the Jaroslovsky article which Liberty Lobby says are false — aside from its being "anti-Semitic" — are the assertion that Pearson's books were "issued" by its "publishing arm" and are still being sold by a Nazi organization. In truth, says Liberty Lobby, Pearson's books were published by "Noontide Press," which has no formal, entity-to-entity relationship with Liberty Lobby. Defendants cite to discovery responses made by Liberty Lobby which strongly support an inference that Liberty Lobby and Noontide Press share a common alter ego in the person of Carto who, for practical purposes, "controls" both. Liberty Lobby's only response is a single short, conclusory, (and evasive) affidavit by Carto denying it, and Liberty Lobby's anti-Semitism as well, from which it argues that the issue is clearly one of fact necessitating a trial.

Whether Noontide Press is, in fact, the "publishing arm" of Liberty Lobby, and Willis Carto and Liberty Lobby are one and the same for purposes of this case, however, the fact is immaterial, for the assertion that they are is not, on its face or otherwise on this record, defamatory in the least of Liberty Lobby but for the allegedly pejorative characterization of the entire conglomerate as "anti-Semitic."

At the outset, the Court suspects, as the district judge held in Liberty Lobby, Inc. v. National Review, Inc., No. 79-3445, slip op. at 7-10 (D.D.C. Apr. 20, 1983), that the term "anti-Semitic," as Jaroslovsky has used it, is probably constitutionally protected opinion. See Ollman v. Evans, 750 F.2d 970, 974-84 (D.C.Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). To the extent that "anti-Semitism" might be said to be an objectively verifiable fact,⁴ however, it is difficult to imagine a case in which the evidence of it would be more compelling. Liberty Lobby admits to being anti-Zionist, but not necessarily anti-Semitic, the difference being that anti-Zionists are antipathetic toward Jews only as a political force and not as a racial or religious entity. There may be such a distinction, but it cannot be made with respect to Liberty Lobby's obvious mindset here. Defendants have amassed through discovery a vast collection of circumstantial evidence of Liberty Lobby's institutional anti-Semitism in its most malign sense;⁵ Liberty Lobby offers once again only Carto's affidavit of denial to refute it.

There is, moreover, affirmative evidence from defendants that The Wall Street Journal published the article in good faith and without "actual malice," i.e., that the defamatory publication was not made with "knowledge of falsity or reckless disregard for the truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974).⁶ Defendants' own affidavits and supporting exhibits show, to the contrary, that Jaroslovsky spent three months intermittently researching the story, reviewed several Liberty Lobby documents and articles about Liberty Lobby, and showed the material he collected to his immediate supervisor and editor, convincing them of the verity of Liberty Lobby's anti-Semitism. Finally, The Journal's Washington bureau chief reviewed the article and, being familiar with Liberty Lobby's radio program and The Spotlight, believed the characterization of the organization to be accurate.

Liberty Lobby has presented absolutely no evidence, by way of affidavit or otherwise, from which it could be found that Jaroslovsky and his editors knew that Liberty Lobby was not anti-Semitic, or that they acted with reckless disregard for the truth of the matter.

III.

This past April, in Philadelphia Newspapers, Inc. v. Hepps, ___ U.S. ___, ___, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986), the Supreme Court held that, in cases such as this, the First Amendment requires that the burden of proof of the falsity of an allegedly libelous article be placed on a plaintiff who sues a media defendant for defamation.⁷ Two months later, in cases decided the same day, the Supreme Court held that a defendant in any case is entitled to summary judgment if the evidentiary record before the trial court, following discovery, demonstrates that the plaintiff will be unable to...