Thompson v. Evening Star Newspaper Company

• Decision Date: 11 April 1968
• Docket Number: No. 21171.,21171.
• Citation: 394 F.2d 774,129 US App. DC 299
• Parties: Dolphin G. THOMPSON, Appellant, v. The EVENING STAR NEWSPAPER COMPANY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

129 US App. DC 299, 394 F.2d 774 (1968)

Dolphin G. THOMPSON, Appellant, v. The EVENING STAR NEWSPAPER COMPANY, Appellee.

No. 21171.

United States Court of Appeals District of Columbia Circuit.

Argued February 14, 1968.

Decided April 11, 1968.

Mr. Charles P. Howard, Jr., Baltimore, Md., for appellant.

Mr. Francis L. Casey, Jr., Washington, D. C., with whom Mr. Robert C. Maynard, Washington, D. C., was on the brief, for appellee.

Before DANAHER, WRIGHT and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

The forty-two million dollar libel suit filed by appellant was terminated by the granting of summary judgment in the District Court. It is contended there were material issues of fact requiring a trial. We disagree and therefore affirm.

These facts are uncontested: Appellant played an active role in the campaign of the "Dedmon slate" in the Democratic primary held in the District of Columbia in May 1964. This was the year in which the voters of the District of Columbia were to have their first opportunity to vote, in November, in a national Presidential election. At stake in the May primary were certain political offices within the Democratic Party: delegates to the Democratic National Convention; two members of the Democratic National Committee; and the members of the District of Columbia Central Committee. There were three slates. The so-called Dedmon-McGerr Slate was headed by Jesse O. Dedmon, candidate for Democratic National Committeeman, and Patricia McGerr, candidate for Democratic National Committeewoman. Appellant, a public relations man in the District of Columbia, was admittedly one of the founders and leaders of the group advocating the Dedmon-McGerr slate, and was chairman of the Jesse Dedmon-Patricia McGerr Democratic Campaign Committee.

The Evening Star, defendant-appellee, published material allegedly defamatory of appellant on three occasions. In one article he was characterized as having been "chief local spokesman for Malcolm X and his Black Muslim Mosque." Another article, published after the election, expressed satisfaction at the voters' rejection of the Dedmon slate and its "blatantly racist appeal." The third expressed the editorial opinion of the Star that appellant had indulged in appeals to racist prejudice.

Under the rule of New York Times Co. v. Sullivan,¹ a publication defamatory of a public official is not actionable unless made with actual malice — that is with knowledge that it was false, or with reckless disregard of whether it was false or not. In Associated Press v. Walker, a majority of the Court held this rule applicable to "public figures."² We think it plain that appellant was a "public figure" within the meaning of Walker and Curtis Publishing Co. v. Butts.³ He was not so well-known as Butts and Walker, but that is not controlling. He clearly, played a role in "the resolution of important public questions."

In this country political parties are an integral part of the democratic process, providing an opportunity for citizens, exercising their constitutional freedom of association, to participate in discussion of issues of the day and to play a role at a critical juncture in the formation of the governments that will staff and operate the machinery of the state. It is part of the democratic evolution of our country that primary elections have increasingly taken the place of private clubs and close knit caucuses, to select both the holders of party office and nominees for public office. The fitness of candidates for political party office is no less a public issue than the fitness of candidates for public office. The public plainly has a vital interest not only in the calibre of candidates for political office, but in the nature of the groups or factions supporting the candidates, and the quality of candidates' spokesmen and backers are appropriate considerations to be taken into account. They "often play an influential role in ordering society."⁴

Appellant did not confine himself to private discussion⁵ of the issues in the primary, but took a prominent role in a group appealing for public support.

Since the very pendency of a libel action may cut across the public interest in free and untrammeled speech on public issues, a public figure cannot resist a newspaper's motion for summary judgment under Rule 56 by arguing that there is an issue for the jury as to malice unless he makes some showing, of the kind contemplated by the Rules, of facts from which malice may be inferred.⁶ This our appellant plainly did not do.

The Star complied with local Rule 9 (h)⁷ by filing a statement of the material facts as to which movant contends there is no genuine issue. Plaintiff did not comply with the rule's requirement that a party opposing summary judgment file a concise "statement of genuine issues," setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated. The local rule specifically provides that in the absence of such statement the court may assume the truth of the facts as set forth by the moving party. The Star accompanied its motion and statement with affidavits by the authors of the allegedly defamatory articles, describing the research undertaken to get their facts, setting forth their belief that the articles as published were true, and specifically denying they were in any way animated by malice towards plaintiff. Plaintiff filed no counter-affidavits disputing...