Sharon v. Time, Inc.

Decision Date12 November 1984
Docket NumberNo. 83 Civ. 4660 (ADS).,83 Civ. 4660 (ADS).
Citation599 F. Supp. 538
PartiesAriel SHARON, Plaintiff, v. TIME, INC., Defendant.
CourtU.S. District Court — Southern District of New York

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

Cravath, Swaine & Moore, and Time, Inc., New York City, for defendant; Thomas D. Barr, Robert S. Rifkind, Paul C. Saunders, Stuart W. Gold, Ronald K. Chen, Kathleen L. Beggs, Israel Leshem, Stephen S. Madsen, Ellen S. Oran, Anne E. Verdon; William M. Guttman, Harry M. Johnston, III, Robert P. Marshall, Jr., New York City, of counsel.

OPINION AND ORDER

SOFAER, District Judge:

Plaintiff Ariel Sharon was the Minister of Defense of the State of Israel from August 1981 until February 11, 1983. During his tenure, Israel embarked upon "Operation Peace for Galilee," an invasion of Lebanon intended to eliminate strongholds from which terrorists of the Palestine Liberation Organization ("PLO") had been launching attacks on Israel. During Israel's occupation of West Beirut, and by prior arrangement with the Israel Defense Forces ("IDF"), members of the Christian Phalangist militia entered two Palestinian refugee camps, Sabra and Shatilla. From September 16 to September 18, 1982, the Phalangists killed hundreds of Palestinian civilians, many of them women and children. As a result of this tragic event, Israel established a Commission of Inquiry Into the Events at the Refugee Camps in Beirut ("the Kahan Commission"). The Commission was charged with determining who was responsible for the killings. It issued its Final Report ("the Report") on February 7, 1983.

Defendant Time, Inc., publishes Time Magazine. Time's February 21, 1983, issue, which appeared on newsstands during the week of February 14, contained an article entitled "The Verdict Is Guilty: An Israeli commission apportions the blame for the Beirut massacre" ("the Article") (Def. Exh. 12).1 The article contained a discussion of the Kahan Commission's findings and recommendations. Time described the Report as a "stinging indictment" of Minister Sharon and extensively quoted the Report's findings that failure to consider the possibility of the murder of innocent Palestinians "constitutes the nonfulfillment of a duty with which the Defense Minister was charged," and that his behavior renders him indirectly responsible for the massacre. Report at 71;2 Article at 29. Time also reported the Commission's recommendation that Sharon "should draw the appropriate personal conclusions" and resign his office. Report at 105; Article at 29.

Sharon sued Time for libel. He does not base his suit on the overall thrust of Time's critical article, most of which is absolutely protected either as opinion or as the fair report of a judicial proceeding. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974); N.Y.Civ. Rights L. § 74 (McKinney 1976). Instead, Sharon bases his case on one paragraph of the article, which states:

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.

Article at 29. Sharon claims that this paragraph is false, both because he never discussed the need for revenge with the Gemayels and because the Commission Report contains no details of such a discussion. He claims that this paragraph is defamatory both because it suggests that he instigated, encouraged, or condoned the massacres at Sabra and Shatilla, and because it suggests that the Commission had secret evidence or found secretly that he had lied when he testified that he had not known in advance that a massacre would occur.

Time moved to dismiss plaintiff's complaint on the grounds that the paragraph was not capable of a defamatory meaning, that plaintiff was libel proof, and that plaintiff had failed to allege special damages. That motion was denied in an opinion concluding that the statement was capable of a variety of defamatory meanings, that the Commission's strong criticism of Sharon had not rendered him libel proof, and that, because the statement was libelous per se, plaintiff was not required to allege special damages under New York law. Sharon v. Time, Inc., 575 F.Supp. 1162, 1165-73 (S.D.N.Y.1983) (Sharon I). Following that opinion, both sides engaged in extensive discovery, during the course of which a decision was issued setting certain limits on the scope of discovery and refusing to bifurcate the trial. Sharon v. Time, Inc., 103 F.R.D. 86 (S.D.N.Y.1984) (Sharon II).

Defendant has now moved for summary judgment pursuant to Fed.R.Civ.P. 56 or, in the alternative, for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Defendant assumes for the purposes of its motion that "the paragraph challenged by plaintiff was totally false." Memorandum in Support of Time Incorporated's Motion To Dismiss and for Summary Judgment at 5 ("Defendant's Memorandum"). It raises five other arguments: (1) the "act of state" doctrine precludes this court from exercising jurisdiction over this case; (2) the First Amendment provides absolute immunity for criticism of the official acts of high governmental officials such as Sharon; (3) Time's inability to obtain necessary information from the State of Israel and from plaintiff has rendered it incapable of defending itself consistently with the requirement of due process; (4) as a matter of law, a jury could not conclude that plaintiff has proved with convincing clarity that defendant acted with actual malice; and (5) because plaintiff as a matter of law has no compensable damages, he cannot maintain this suit merely to attempt to recover punitive damages. For the reasons stated below, defendant's motion is denied.

I. The Act of State Doctrine and Justiciability

Time argues that the federal courts may not adjudicate this case because the litigation will require the jury to render judgment as to the validity of numerous acts of the States of Israel and Lebanon. Time claims that proof concerning these "acts of state" is unavoidable, and that litigation concerning them is inappropriate due to the absence of judicial standards and the potentially adverse impact of the trial and the jury's findings on the foreign relations of the United States. Time's proposed acts of state, however, are not the types of acts that provide a proper basis for applying the act of state doctrine. Time's arguments nevertheless raise a substantial issue of nonjusticiability; this litigation involves questions that are difficult to litigate efficiently, and disclosures and findings may result that could embarrass the United States or other nations. Assuming that the federal courts can refuse to decide cases as nonjusticiable, however, a balancing of the relevant considerations fails to justify dismissal here.

A. The Act of State Doctrine

The act of state doctrine provides that a United States court "will refrain from examining the validity of an act of a foreign state by which that state has exercised its jurisdiction to give effect to its public interests." Restatement (Second) of Foreign Relations Law § 41 (1962). The doctrine is limited to laws, decrees, decisions, seizures, and other officially authorized "public acts." The acts to which the doctrine has been applied have been official attempts to implement public policy, and a fairly stringent degree of formality may be required in proving such an act, at least where it is alleged to have occurred with respect to a subject not normally controlled by public acts. Thus, in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976), the Supreme Court rejected the view that an act of state was established by a representation of counsel that an ordinary commercial obligation had been officially repudiated. The Court held that Cuba's mere refusal to pay the debt did not constitute a repudiation sufficient to trigger the act of state doctrine:

No statute, decree, order, or resolution of the Cuban Government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had as a sovereign matter determined to confiscate the amounts due three foreign importers.

Id. at 695, 96 S.Ct. at 1861; see The Supreme Court—1975 Term, 90 Harv.L.Rev. 265, 271-72 (1976).

In this case, Time almost indiscriminately states that "a trial of this action will require the jury to render judgment as to numerous acts of the States of Israel and Lebanon," and lists historical events including "the meetings and discussions among Bashir Gemayel and representatives of Israel," "internal debates within the Israeli Cabinet," "the decision to send the Phalangists into the refugee camps," and the proceedings and findings of the Israeli Commission which investigated the massacres. Defendant's Memorandum at 61-62. In substance, Time contends: "Sharon's Acts and the Kahan Commission Proceedings Were Acts of the State of Israel." Id. at 72. Furthermore, Time seems to argue that this very suit is an act of state, since it was brought by a former and present minister in Israel's government, allegedly with that government's approval.

Neither Sharon's alleged acts, nor the...

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