Sharon v. Time, Inc.

• Decision Date: 09 December 1983
• Docket Number: No. 83 Civ. 4660 (ADS).,83 Civ. 4660 (ADS).
• Citation: 575 F. Supp. 1162
• Parties: Ariel SHARON, Plaintiff, v. TIME INC., Defendant.
• Court: U.S. District Court — Southern District of New York

575 F. Supp. 1162

Ariel SHARON, Plaintiff, v. TIME INC., Defendant.

No. 83 Civ. 4660 (ADS).

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

December 9, 1983.

Shea & Gould, New York City, for plaintiff; Milton S. Gould, Bernard D. Fischman, Arnold Forster, Richard M. Goldstein, Andrea B. Feller, New York City, of counsel.

Cravath, Swaine & Moore, New York City, for defendant; Robert S. Rifkind, Stuart W. Gold, Louis M. Solomon, Valerie E. Caproni, New York City, of counsel.

OPINION AND ORDER

SOFAER, District Judge.

The complaint in this case, brought by General Ariel Sharon, former Minister of Defense of the State of Israel, charges Time, Inc., with libel for a statement published in Time, its mass-circulation weekly. Sharon claims the statement accuses him of knowingly permitting or encouraging the murder of Palestinian refugees at the Sabra and Shatilla camps in West Beirut, Lebanon. Time has moved to dismiss the complaint, arguing that the allegedly objectionable statement is not libelous, that Sharon is libel proof on the issue of his involvement in the Sabra and Shatilla massacre, and that the alleged libel is one that requires Sharon to plead special damages, which he has failed to do.

The statement of which plaintiff complains was made in the course of an article published in the issue of Time dated February 21, 1983, entitled "The Verdict is Guilty." The article describes the findings and recommendations of the Kahan Commission, appointed by the State of Israel to investigate the murders of Palestinians at Sabra and Shatilla.¹ It contains pictures of the victims and chief protagonists, some background materials, and an analysis of world reaction. It describes the Kahan Report as "a stinging indictment of Defense Minister Ariel Sharon and several military officials." Article at 26, reproduced as Appendix 2, Complaint. It recites that the Commission "asserted flatly" that the atrocities at the camps were committed by Phalangist forces, not Israelis, but that the Commission also found that Sharon and others bore "`indirect' responsibility" because the decision to permit the Phalangists to enter the camps "`was taken without consideration of the danger ... that the Phalangists would commit massacres and pogroms against the inhabitants.'" Article at 26, 28 (quoting Report at 12, 13).

The article mentions Sharon several times. First, in describing the events immediately before the massacre, the article states that on September 15, the day after the assassination of Bashir Gemayel, the Phalangists' military leader and Prime Minister-elect of Lebanon, "Sharon arrived in Beirut, conferred with his commanders and paid a condolence call on the Gemayel family." Id. at 28. Then, after describing the Commission's criticisms of Prime Minister Begin and Foreign Minister Shamir, the article recounts what it terms the Commission's "strongest condemnation":

For Sharon, the commission reserved its strongest condemnation, declaring: "It was the duty of the Defense Minister to take into account all the reasonable considerations for and against having the Phalangists enter the camps, and not to disregard entirely the serious consideration mitigating against such an action, namely that the Phalangists were liable to commit atrocities and that it was necessary to forestall this possibility as a humanitarian obligation and also to prevent the political damage it would entail. From the Defense Minister himself, we know that this consideration did not concern him in the least." It should have, concluded the report: "In our view, the Defense Minister made a grave mistake when he ignored the danger of acts of revenge and bloodshed by the Phalangists against the population in the refugee camps. These blunders constitute nonfulfillment of a duty with which he was charged." In consequence, Sharon should "draw the appropriate personal conclusions," i.e., resign or be fired by the Prime Minister.

Id. at 29 (quoting Report at 13, 22).

After reviewing the Commission's findings on the responsibility of other, senior military officers, the article continues with the paragraph that contains the only material cited by plaintiff as libelous:

One section of the report, known as Appendix B, was not published at all, mainly for security reasons. That section contains the names of several intelligence agents referred to elsewhere in the report. TIME has learned that it also contains further details about Sharon's visit to the Gemayel family on the day after Bashir Gemayel's assassination. Sharon reportedly told the Gemayels that the Israeli army would be moving into West Beirut and that he expected the Christian forces to go into the Palestinian refugee camps. Sharon also reportedly discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir, but the details of the conversation are not known.

Id.

I. Defamatory Meaning

Time seeks dismissal, first, on the ground that the allegedly libelous statement cannot fairly and reasonably be construed to defame Sharon. The controlling standard is whether the offending words are "reasonably susceptible of a defamatory connotation" when read in the context of the article in which they appear, James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y. S.2d 871, 874, 353 N.E.2d 834, 837 (1976), and with careful attention to "the particular phraseology used in the purportedly libelous statement," Tracy v. Newsday, 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 4, 155 N.E.2d 853, 855 (1959). The question is one of law, which the court must resolve by means of a "`fair,' not a `broad' reading." Drug Research Corp. v. Curtis Publishing Co., 7 N.Y.2d 435, 440, 199 N.Y.S.2d 33, 36, 166 N.E.2d 319, 321 (1960). The court may not, however, interfere with the jury's role by treating as nondefamatory a statement that a reasonable juror may fairly read in context as defamatory. Mencher v. Chesley, 297 N.Y. 94, 102, 75 N.E.2d 257, 260 (1947).

The language on which the complaint focuses reads: "Sharon also reportedly discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir, but the details of the conversation are not known." Time argues that a discussion of the need for revenge, without more, could not expose Sharon to hatred, contempt, or aversion, or harm him in his profession. Yet, Time recognizes that the statement must be read in context. Sharon contends that in light of the entire article the challenged statement may reasonably be read to suggest that he encouraged the Phalangists to perpetrate bloodshed. Thus, Sharon alleges:

The foregoing matter is false and defamatory in that it states that plaintiff discussed with the Gemayels the need for the Phalangists to take revenge against the West Beirut Palestinians and that plaintiff encouraged the Phalangists to perpetrate bloodshed among them. Plaintiff did not make any such statement nor did he participate in any such discussions as stated in the publication.

Complaint ¶ 7. Furthermore, Sharon claims that the article is also defamatory in that it "falsely attributes to the Commission a finding or determination that plaintiff in fact made such statements or participated in such discussions." Id. ¶ 8. Sharon alleges on information and belief that the secret appendix to the report "does not contain any such finding or determination, nor does it describe or contain any such statements or discussions allegedly made or engaged in by plaintiff." Id.

Time contends that these libelous interpretations are precluded by the thrust of the article, which reported the Commission's finding that Sharon had "disregarded entirely" and "ignored" the risk of Phalangist atrocities, because "Sharon could not both have disregarded the risk of the Phalangists' taking revenge and have been a provocateur of that revenge." Defendant's Memorandum at 13. Time's logic is unassailable, but inapposite. Unlike the article at issue in James, on which Time relies, the contents of the article here do not refute any allegedly defamatory suggestion. See 40 N.Y.2d at 420-21, 386 N.Y. S.2d at 875, 353 N.E.2d at 838. Time reported that it had "learned" the information conveyed by the purportedly libelous statement, and that the information had appeared in an appendix kept secret by the Commission for "security reasons." A reasonable reader could therefore construe the story to suggest that the Commission had actually reached a very different conclusion about Sharon's involvement in the massacre than it had publicly announced. Time cannot rely on its report of the Commission's public findings to refute the suggestion of a coverup raised by the article itself.

Time also argues that plaintiff's reading is based on "layers of inference and assumption" beyond the plain language and meaning of the allegedly libelous sentence. It contends that, in order to reach the conclusion that Sharon encouraged the Phalangists to take revenge, a reader would be required to interpret the challenged statement to mean (1) that in discussing the need for revenge Sharon "took a position that acknowledged the reality of such a need;" (2) that he "acquiesced in or sanctioned action based" on the need; (3) that the "revenge" discussed was not political or conventional military action "but rather was to take the form of bloody mayhem;" and (4) that Sharon "affirmatively `encouraged' or `instigated' the bloodletting." Defendant's Memorandum at 16-17. Further, Time points out that the challenged sentence includes the qualification that "the details of the conversation are not known." Id. at 17 (quoting Article at 29). Time contends "the reasonable reader would not make those inferences or assumptions." Id.

These inferences and assumptions are reasonable, however, when the allegedly libelous statement is read in context, and with regard to its specific words. The article states that Sharon "discussed," not merely listened to statements concerning, ...