Price v. Viking Penguin, Inc., Civ. 4-85-819.

• Decision Date: 13 January 1988
• Docket Number: Civ. 4-85-819.
• Parties: David PRICE, Plaintiff, v. VIKING PENGUIN, INC., Peter Matthiessen, and Bruce Ellison, Defendants.
• Court: U.S. District Court — District of Minnesota

676 F. Supp. 1501

David PRICE, Plaintiff, v. VIKING PENGUIN, INC., Peter Matthiessen, and Bruce Ellison, Defendants.

Civ. 4-85-819.

United States District Court, D. Minnesota, Fourth Division.

January 13, 1988.

Daniel P. O'Keefe, and Roger J. Magnuson, Dorsey & Whitney, Minneapolis, Minn., appeared on behalf of plaintiff.

Martin Garbus, and Richard Kurnit, Frankfurt, Garbus, Klein & Selz, New York City, appeared on behalf of defendants Viking Penguin, Inc., and Peter Matthiessen.

Barbara F.L. Penn, St. Paul, Minn., also appeared on behalf of Viking Penguin, Inc.

Bruce Ellison, Rapid City, S.D., appeared pro se.

MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiff David Price, an agent of the Federal Bureau of Investigation (FBI), brought this defamation action against defendants Viking Penguin, Inc. (Viking), Peter Matthiessen, and Bruce Ellison in connection with the publication of the book In the Spirit of Crazy Horse. Plaintiff alleges that the book defames him in connection with events at Wounded Knee, South Dakota in 1973 and events surrounding and subsequent to the killing of two FBI agents on the Pine Ridge Indian Reservation in 1975. Plaintiff seeks $25 million in compensatory damages. Diversity jurisdiction is alleged. The matter comes before the court on motions for dismissal or summary judgment brought by defendants Viking and Matthiessen.

I.

A.

This action has been vigorously litigated in more than one forum.¹ Plaintiff commenced the action on February 9, 1984 in the United States District Court for the District of South Dakota against defendant Viking, the publisher of the book In the Spirit of Crazy Horse; defendant Matthiessen, the author of the book; and defendant Ellison, who allegedly supplied information for the book. Plaintiff asserted causes of action for defamation, intentional infliction of emotional distress, false light invasion of privacy, and prima facie tort. Plaintiff also filed an identical action in South Dakota state court. After the state court granted the motion of defendants Viking and Matthiessen to dismiss for lack of personal jurisdiction,² plaintiff and defendants Viking and Matthiessen stipulated to the transfer of the federal action to the District of Minnesota. The federal action was transferred here on June 25, 1985.

Defendants Viking and Matthiessen then moved to dismiss and for a stay of discovery pending determination of their motion. Discovery was stayed on October 7, 1985, and the court subsequently dismissed certain of plaintiff's claims. These were claims for intentional infliction of emotional distress, false light invasion of privacy, and prima facie tort, as well as a number of the defamation allegations. Price v. Viking Press, Inc., 625 F.Supp. 641 (D.Minn.1985). The court determined that plaintiff was entitled to further discovery before any ruling with respect to the remaining defamation allegations. Id. at 648-49. After settlement efforts by a special master³ failed to bear fruit, the court lifted the stay of discovery on August 5, 1986.

Discovery thereafter ensued for a period in excess of one year.⁴ Depositions were taken of plaintiff; defendant Matthiessen; defendant Ellison; Elisabeth Sifton, Matthiessen's editor at Viking; James Leach, an attorney who worked with the Wounded Knee Legal Defense/Offense Committee (WKLDOC); Karen Northcott, a WKLDOC aide; Kenneth Tilsen, an attorney who was one of the founders of WKLDOC and other persons associated with the book.⁵ In an order dated December 12, 1986, the court granted, in part, a motion by plaintiff to compel discovery and established a standard for the scope of discovery. 113 F.R. D. 585 (D.Minn.1986). Another motion to stay discovery by defendants Viking and Matthiessen was denied on February 20, 1987. 115 F.R.D. 40, 41 (D.Minn.1987). A petition of defendants Viking and Matthiessen for favorable findings toward disclosure of grand jury testimony was granted in part on March 2, 1987. Id. at 42-43. On March 16, 1987, the court extended the deadline to allow further discovery to be conducted. 115 F.R.D. 43 (D.Minn.1987). The parties were then given the opportunity to supplement the record with additional evidence obtained through this discovery. Defendants again moved to extend the discovery deadline on September 9, 1987; plaintiff opposed the motion. Rather than reach the merits of this dispute, on September 29, 1987, the court stayed any additional discovery pending resolution of the motions now before it.

On February 19, 1987, the court dismissed the claims against defendant Ellison on the basis of res judicata. 654 F.Supp. 1038 (D.Minn.1987). A counterclaim asserted by defendant Ellison remains in the case, however. At the hearing on his motion, Ellison stated that he also has an action against Price pending in South Dakota state court. He is a resident of South Dakota and never agreed to the transfer of plaintiff's case to this district. He noted at that hearing that he considered the action to be "more proper in South Dakota." Transcript of Proceedings at 5 (Jan. 9, 1987).⁶

Now before the court are three motions made by defendants Viking and Matthiessen.⁷ First, defendants move for dismissal on the ground that the allegedly defamatory statements are protected opinion or merely reports of accusations.⁸ Alternatively, defendants move for summary judgment on the ground that plaintiff has failed to make a showing of actual malice by clear and convincing evidence. Finally, in what was labeled a "cross motion," defendants move for dismissal on the ground that the assertion of privilege by the federal government has made a fair trial impossible. In connection with these motions, the parties have submitted an enormous volume of materials, including multiple memoranda, complete deposition transcripts, lengthy affidavits with numerous exhibits, and the book itself.

B.

On this motion for summary judgment, the facts must of course be viewed in the light most favorable to plaintiff. The book itself is at the heart of the case, and in the course of this litigation the court has read its entire 611 pages of text and notes.

Defendant Matthiessen is a well-known author of approximately 18 books and numerous magazine and newspaper articles.⁹ He states that he conducted research for the book over a number of years. Many of the persons Matthiessen interviewed in connection with his research were affiliated with organizations seeking to protect or promote the interests of American Indians. Matthiessen also interviewed plaintiff and attempted to interview Evan Hultman, a former United States Attorney connected with the events described. Prior to its publication in 1983, an excerpt from the book was published in The New York Times in different form. In preparing the book for publication, Matthiessen provided copies of the manuscript to a number of individuals familiar with the facts described and solicited their opinions. Several persons identified potential inaccuracies in the book.¹⁰ After this action was commenced in 1984, defendant Viking withdrew all hardcover copies from circulation; a paperback version has never been published.

Though the book's historical scope is broad, discussing the relationship between the Indian peoples and the federal government from 1835 to 1981, it largely focuses upon events related to the killing of two FBI agents on the Pine Ridge Indian Reservation on June 26, 1975. It examines conditions on the reservation and the subsequent government investigation into the killings. It also reports on the indictment, trial and conviction of Leonard Peltier, a member of the American Indian Movement (AIM), on two counts of murder. In the words of the book's dust cover, Matthiessen "presents disturbing new evidence, obtained under the Freedom of lnformation Act in 1980 and 1981, which suggests that Peltier may well be innocent, and argues persuasively that in any event he deserves a new—and fair—trial." Considerable space in the book is also devoted to a discussion of the occupation of Wounded Knee in 1973 and the federal government's response to it.

Prior to writing the book, Matthiessen entered into an agreement with Telos Film Corp. (Telos) and the Leonard Peltier Defense Committee (Defense Committee). Under this agreement, which is dated October 1, 1980, Telos and the Defense Committee agreed to provide Matthiessen with access to information relating to Peltier, including an exclusive interview with Peltier. In return, Matthiessen agreed to share his advances and royalties from the book, providing Telos and the Defense Committee with 40 percent of the first $100,000, and 55 percent of all subsequent proceeds. This arrangement was also set forth in Matthiessen's contract with Viking, which is dated June 8, 1981. The book does not disclose this agreement, except insofar as it acknowledges the assistance of the Defense Committee.

Plaintiff Price figures fairly prominently in the book, both in connection with the Wounded Knee trials and in connection with events surrounding the killing of the two FBI agents. Twelve pages of the book recount in detail a telephone conversation between Price and Matthiessen, in which Price sets forth his view of many of the events described in the book. In the Spirit of Crazy Horse 461-72 (1983).¹¹ Matthiessen concludes his description of the conversation by referring to Price as "the man regarded wrongly as the villain of the tale...." P. 472.

Price alleges that statements in the book stated or suggested that he is a murderer; that he knowingly suborned perjury; that he violated constitutional and other rights in the performance of his duties as an FBI Special Agent; that he unlawfully harrassed sic American Indian Movement ("AIM") members and attempted to destroy AIM; that he is a liar; that he is corrupt; that he is vicious and violent; that he is a racist; that he willfully neglects the duties of his job; and that he

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