Secord v. Cockburn, Civ. A. No. 88-0727-GHR.
| Decision Date | 27 August 1990 |
| Docket Number | Civ. A. No. 88-0727-GHR. |
| Citation | 747 F. Supp. 779 |
| Parties | Richard V. SECORD, Plaintiff, v. Leslie COCKBURN, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
COPYRIGHT MATERIAL OMITTED
Thomas C. Green, Sharp, Green & Lankford, W. Michael Kramer, Kramer & Associates, Michael P. McDonald, Center for Individual Rights, Washington, D.C., for plaintiff.
Floyd Abrams, Dean Ringel, Steven Lieberman, Adam Liptak, Cahill Gordon & Reindel, New York City, Rand McQuinn, Cahill Gordon & Reindel, Washington, D.C., for defendants Morgan Entrekin, Atlantic Monthly Press and Little, Brown and Company (Inc.)
John Taylor Williams, Palmer & Dodge, Boston, Mass., of counsel for defendant Little, Brown and Company (Inc.).
Michael Kennedy, New York City, for defendants Leslie Cockburn and Andrew Cockburn.
The plaintiff, retired Major General Richard V. Secord, filed the instant libel action against the defendants Leslie Cockburn, Andrew Cockburn, Morgan Entrekin, Atlantic Monthly Press, and Little, Brown and Company, Inc., arising out of the writing, publication and distribution of a book entitled Out of Control: The Story of the Reagan Administration's Secret War in Nicaragua, the Illegal Pipeline, and the Contra Drug Connection (1987) (hereafter "Out of Control"). This matter is before the Court pursuant to the defendants' motion for summary judgment.
Out of Control is a book about the purported activities of a group of Americans that supported the movement of the Contras to overthrow the Sandinista government in Nicaragua. The plaintiff contends that Out of Control identifies him as a member of a "secret team" which had engaged in illegal drug trafficking, torture, murder and attempted assassination as part of its conspiracy to overthrow the Sandinista government. The plaintiff broadly alleges that "the entire text of Out of Control defames him." Statement of Points and Authorities in Support of Plaintiff's Motion in Opposition to Defendants' Motion for Summary Judgment (hereafter "Plaintiff's Opposition") at 27. Notwithstanding such a broad allegation of defamation the plaintiff isolates the gravamen of his complaint to three specific areas. First, the plaintiff contends that "Out of Control states to the average reader that General Secord participated in, facilitated, acquiesced in or condoned an attempt to assassinate Contra leader Eden Pastora at La Penca in May, 1984."1
Plaintiff's Statement of Material Facts as to Which There is No Genuine Issue Pursuant to Local Rule 108(h) (hereafter "Plaintiff's 108(h) Statement") at ¶ 9. Second, the plaintiff contends that "Out of Control alleges that General Secord participated in, facilitated, acquiesced in or condoned the illicit purchase, transportation and sale of cocaine, opium and other illegal drugs and in drenching America in cocaine and other narcotics."2Id. at ¶ 13. Third, the plaintiff contends that "Out of Control states and conveys to an average reader that General Secord participated in, facilitated, acquiesced, or condoned massive bribery of government officials in Iran and unconscionable profiteering in United States weapon sales to Iran."3Id. at ¶ 16.
See generally Plaintiff's Opposition at 27-31; Plaintiff's Amended Complaint at ¶ 12.
In order to prevail in a libel suit the plaintiff must demonstrate that the statements complained of are (1) defamatory, (2) false, (3) statements of fact (and not opinion), and (4) made with the requisite degree of fault. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1293 (D.C.Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988). The statements in question must be "of and concerning" the plaintiff. Summerlin v. Washington Star Co., 7 Media L. Rep. (BNA) 2460 (D.D.C.1981). In addition, the passages will not be actionable if subject to certain common-law privileges, as for example the privilege for publication of accurate reports of official governmental proceedings. Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C.1980).
This Court focusses only on the issue of whether the statements were made with the requisite degree of fault. Although this Court expresses some serious doubt whether much of what plaintiff cites to in Out of Control is even of a defamatory nature of and concerning the plaintiff, this Court reaches only the issue of whether the statements were published with the requisite degree of fault in light of the October 5, 1989 status hearing and Order in which this Court established a briefing schedule for a dispositive motion on this basis pursuant to the parties' agreement.
Gertz, 418 U.S. at 342, 94 S.Ct. at 3008.
A review of the plaintiff's military career and his role in attempting to influence fundamental issues of this country's military and foreign policy illustrates his status as a public figure. The plaintiff testified in his deposition that he served as a general officer in Iran. According to plaintiff, "general officers are the senior executives and are much more involved in management ... than in hands-on operations." Secord Deposition (I) (attached as exhibit 1 to Ringel Affidavit) at 37. The plaintiff provided that "general officers have great prestige" and are "sought after and highly competitive" positions. Id. Most fundamental, the plaintiff recognized that the general officers "absolutely" hold an important public trust. Id. at 37-38.
The plaintiff then served as Director of International Programs for the Air Force, id. at 43-44, and as Deputy Assistant Secretary of Defense. Id. at 55. In regard to the latter position, the plaintiff described it as "a policy level assignment ... responsible to an assistant Secretary of Defense who was in turn responsible to the Secretary of Defense." Id. at 56. The plaintiff characterized the assignment of Deputy Assistant Secretary of Defense as a "high profile job." Id. at 57.
After leaving active service in May 1983, plaintiff was one of ten or so general or flag officers appointed by the Secretary of Defense to serve on the Special Operations Policy Advisory Group which "advised the Secretary of Defense on special operations matters that the Secretary thinks are of importance." Id. at 58-59.
The plaintiff also represented the government of the United States as "an emissary authorized by the President" in connection with negotiations with the Iranians. Id. at 62-63. In this role the plaintiff on one occasion conveyed thanks directly from the President to the Prime Minister of Israel for assistance that the Prime Minister had rendered. Id. at 63.
The plaintiff later voluntarily assumed a position of responsibility as head of the "Enterprise" in connection with the Iran-Contra initiative. The plaintiff testified that he "exercised overall control" over the "Enterprise" which "is the group of companies that Mr. Hakim formed to manage the Contra and the Iranian project." Testimony by Richard Secord in Iran-Contra Hearings (attached as exhibit 9 to Leslie Cockburn Affidavit) at 172.
As the Supreme Court defined "public figure":
For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. The above outline of the plaintiff's career demonstrates a man committed to effecting United States military and foreign policy by the assumption of highly influential positions. In summarizing the plaintiff's military career the following exchange occurred at his deposition:
Secord Deposition (I) at 78-79. Indeed, any individual who holds an advisory military or diplomatic position, or otherwise attempts to shape the policy of the United States, is by definition a public figure by the fact that the policy which the individual seeks to shape ultimately effects the public. See MacNeil v. Columbia Broadcasting Sys., Inc., 66 F.R.D. 22, 25 (D.D.C. 1975) (); cf. Arnheiter v. Random House, Inc., 578 F.2d 804, 805 (9th Cir.1978) (per curiam), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979) ().
Moreover, the plaintiff has appeared as a speaker at many political gatherings and has been interviewed on network television programs including ...
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