Washington Post Company v. Keogh

Decision Date28 July 1966
Docket NumberNo. 19668.,19668.
Citation365 F.2d 965
PartiesThe WASHINGTON POST COMPANY, Appellant, v. Eugene J. KEOGH, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. James H. McGlothlin, Washington, D. C., with whom Mr. Michael S. Horne, Washington, D. C., was on the brief, for appellant.

Mr. Philip Handelman, Washington, D. C., for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT and McGOWAN, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

This appeal presents for consideration in a summary judgment context an application of the public official libel principle enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Appellee, a United States Congressman from New York, sued the Washington Post and its syndicated columnist, Drew Pearson, for alleged libelous information appearing in two of Pearson's columns (appendices to this opinion) published in the Post. Without surrendering the defense of truth on the merits, the Post moved for summary judgment on the ground that the record raised no genuine issue as to actual malice on its part. The District Court, although "aware that there is substantial ground for a difference of opinion as to the law which we have cited in supporting this holding," distinguished Times1 and, finding itself in "doubt," denied the motion for summary judgment and certified the case for interlocutory appeal, 28 U.S.C. § 1292(b). Keogh v. Pearson, D.D.C., 244 F.Supp. 482, 486 (1965). We reverse.


The governing rule of law, announced in New York Times, is that public officials may sue for libel only when they can demonstrate the statement was made with "actual malice," which is defined to mean publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. In Garrison v. State of Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), the Court refined its standard, stating that "only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions." And in Henry v. Collins, 380 U.S. 356, 357, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965), the Court reversed on the certiorari papers a judgment based upon an instruction allowing the jury to infer malice from the falsity and libelous nature of a statement, pointing out this instruction allowed the jury to find malice from "intent to inflict harm" rather than from "intent to inflict harm through falsehood."

The obvious purpose of these cases is to create a rule of law more restrictive for public official plaintiffs than the pre-Times practice of allowing juries to infer malice from the face of defamatory publications. E. g., Ross v. Esquire, Inc., 2 Cir., 94 F. 2d 75, 77 (1938). Malice, under the pre-Times practice, was equated with hostility, vindictiveness or negligent disregard of reputation. Under the Times test false statements made with these motives alone are not actionable; maliciousness may be shown only through knowledge of falsity or reckless disregard of truth or falsity. It is in light of this standard that the evidence in this case must be examined to determine whether summary judgment should have been granted.

A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. In deciding whether a genuine issue of fact is raised in any case, a number of general considerations are relevant. First, the right to trial by jury is at stake, so courts must be ever careful to grant summary judgment only when no issue of fact is controverted or turns upon a choice between permissible inferences from undisputed evidence. See Pierce v. Ford Motor Co., 4 Cir., 190 F.2d 910, cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951). This need for care has given rise to the valid generalizations that summary judgment must be denied when there is "doubt" whether an issue of fact has been raised, and that summary judgment is not usually appropriate when the issue raised concerns a subjective state of mind.

These generalizations do not, however, relieve courts of their responsibility to decide whether a genuine issue of fact exists. That doubt concerning the issue should be resolved against the movant may assist courts in disposing of troubling cases after deliberation, but it provides no assistance in the deliberative process itself. That state of mind should generally be a jury issue does not mean it should always be so in all contexts,2 especially where the issue is recklessness, which is ordinarily inferred from objective facts. Summary judgment serves important functions which would be left undone if courts too restrictively viewed their power. Chief among these are avoidance of long and expensive litigation productive of nothing, and curbing the danger that the threat of such litigation will be used to harass or to coerce a settlement. Asbill & Snell, Summary Judgment Under the Federal Rules — When an Issue of Fact is Presented, 51 MICH.L.REV. 1143, 1144 (1953).

In the First Amendment area, summary procedures are even more essential. For the stake here, if harassment succeeds, is free debate. One of the purposes of the Times principle, in addition to protecting persons from being cast in damages in libel suits filed by public officials, is to prevent persons from being discouraged in the full and free exercise of their First Amendment rights with respect to the conduct of their government. The threat of being put to the defense of a lawsuit brought by a popular public official may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself, especially to advocates of unpopular causes. All persons who desire to exercise their right to criticize public officials are not as well equipped financially as the Post to defend against a trial on the merits. Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors. And to this extent debate on public issues and the conduct of public officials will become less uninhibited, less robust, and less wide-open, for self-censorship affecting the whole public is "hardly less virulent for being privately administered." Smith v. People of State of California, 361 U.S. 147, 154, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959).

The Supreme Court has made clear that public officials, including Congressmen, are immune from liability for statements, however false and defamatory, made in the course of their official duty. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). The other side of that coin is that public officials do not have the same protection from libelous statements as private victims. "It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves." New York Times Co. v. Sullivan, supra, 376 U.S. at 282-283, 84 S.Ct. at 727.3


The evidence on the motion for summary judgment shows that Pearson has been writing a daily column for many years and that this column is published in more than 600 newspapers with a daily circulation of over forty million. The Post filed depositions of three employees and affidavits by its editor and an assistant managing editor indicating that before publication each of the Post personnel deposing had read one or both of the columns and had no reason to believe or evidence causing them to suspect the information contained in them was false. In opposition Keogh filed the two Pearson columns and his own affidavit. The columns identified Keogh specifically and, according to the complaint, intended to convey that Keogh took bribes which influenced his official actions and votes, and that he had attempted to bribe a federal judge "but was spared from prosecution because of his close political association with the President and Attorney General of the United States." Keogh's affidavit neither related to the information contained in the columns nor contradicted the depositions and affidavits of the Post personnel. It attempted to demonstrate, through a series of excerpts from various magazine and newspaper articles, that Pearson's "reputation for accuracy and veracity" is such "that mere reliance upon his word is grossly negligent and reckless."

It is undisputed that no issue of fact exists here as to publication with actual knowledge of falsity. The unimpeached Post personnel depositions are dispositive of this issue. Orvis v. Brickman, 90 U.S.App.D.C. 266, 196 F.2d 762 (1952). Rather, Keogh asserts the columns were published with reckless disregard for their truth or falsity. His principal argument on appeal, accepted by the District Court, is that the "character and content of the publication itself" is sufficient to take the case to the jury on actual malice, in light of the Post's failure to check the accuracy of Pearson's columns before publication.4 The Supreme Court held in Times, of course, that the character and content of the publication there involved was a constitutionally impermissible evidentiary basis for a finding of actual malice, even though the Times had failed to verify its contents. Keogh's attempt to distinguish Times on grounds that Pearson's columns specifically identified Keogh and that they contained "more serious" allegations than those made in Times is unconvincing. There may be some collateral significance in the fact that Pearson's columns specifically identified Keogh,5 but this fact has no relevance to the Post's recklessness for the truth. If anything, a veiled but obvious reference to an individual in a highly critical context, as in Times...

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